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Christo Smith Law Blog

My will is “with the bank” – is that ok?

There is a general misconception that banks and other financial institutions may be trusted with wills and estates. They look so “great” and after all, they are the financial giants of the world – surely they are equipped to look after my assets after my death? Maybe those that believe this should reconsider. It could prevent a catastrophy for the surviving spouse and heirs. Here are the reasons :

  1. A will provides for the appointment of an executor. The executor is the person who fills your shoes after your death. Obviously it is a powerful position. The executor makes important decisions regarding investments and the administration of the estate. Banks always ensure that they are appointed as your executor. If not, they won’t be interested in providing you with a “free” will. They do this to take control of your assets after your death and to earn the executor’s fee of 3,5% of the value of the assets.
  2. When a bank or other financial institution is the executor of your estate, your family looses control. Your spouse and your family are at the mercy of a powerful institution. Estates may take years to complete. Your spouse has no access to funds in the estate and often is forced to take a loan from the bank at exorbitant interest rates. The bank also has the privilege of investing the estate funds for their own benefit. Whilst you are alive, you don’t relinquish control of your assets to others, why do it after your death?
  3. Your spouse has to communicate with the executor on a regular basis. If its a bank, its not the friendly manager around the corner. It will be the bank’s trust division far away, probably in one of the major cities. The “executor” is a bank clerk that is frequently replaced. Your estate is but one amoungst hundreds in the system. Just think of the frustration when having to telephone a bank – one is forever confronted by computerized voice directions and you hardly ever get to talk to a real human being! Just think of the phone problems that you are faced with when it comes to estates.
  4. If, after your death, the estate does not have much value, a bank will not take the appointment as executor. Its just not lucrative enough. In that case the heirs will have to approach the Master of the Court to appoint someone.
  5. Wills are often complicated and the “standard” form will not suffice. Estates also, are often complicated. Often trusts must be established. In such instances banks are not equipped to render a professional service. You may be provided with a “standard” will that costs you nothing, but your heirs will pay the price!
  6. Banks have a tendency to drag their feet with estates. One of the reasons for this is the fact that the “executor” is a bank employee who has no direct interest in the speedy completion of the estate. Its just another file. The surviving spouse and heirs suffer the financial losses caused by the delay in the transfer of funds and assets.  Banks also have the advantage of deciding how estate funds are invested, often not at the best rates for the benefit of heirs.
  7. Can you have an executor removed? Yes, but only by way of a court order. If the bank has been appointed as your executor, the heirs and/or the surviving spouse have to approach the High Court at exorbitant legal costs and risk for an adverse order. Courts only remove executors in extreme circumstances.
  8. What has been stated above also applies to brokers, auditors, other institutions and persons who are not qualified legal practitioners.

So what is the solution?

Testamentary provisions are often complicated and require specialist skills. Many estates are also complicated. Attorneys are trained to draft wills and administer estates. Appoint an attorney as your executor. You may also negotiate the fee with him – it does not have to be 3,5%. The bank will not negotiate the fee. In the alternative, spouses may appoint one another as executors. The fact that you are an executor does not mean that you have to administer the estate. You can appoint an attorney as your agent. The advantage however is that if he or she fails to perform, you can remove the file – you are the executor, you have the power. When your attorney or your spouse or a family member is the executor, the surviving spouse has access to funds. You decide where to invest funds. Communication is easy and the estate can be dealt with speedily. You also have the peace of mind that a specialist is taking care of affairs.

The bank’s standard will may be free, but rather pay the attorney a small fee – its a good investment that your heirs will appreciate forever.

My will is “with the bank” – is that ok?