Deceased Estates in South Africa

What happens to a person’s estate when he or she dies?

At death the estate of the deceased person is frozen, and no-one may withdraw funds from the deceased’s bank accounts or deal with any of the estate assets without the necessary permission from the Master of the High Court. If the deceased was married in community of property, the joint estate is frozen. This situation often creates hardship for the surviving spouse, especially where the bank accounts were all in the name of the joint estate or in the name of the deceased.

The origin of a deceased estate

A deceased estate comes into existence when a person dies leaving property or a document which is a will or purports to be a will. Such estate must then be administered and distributed in terms of the deceased’s will or failing a valid will, in terms of the Intestate Succession Act, 81 of 1987. The procedure which must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 66 of 1965 (as amended).

Which deaths?

The death of a person who dies within the Republic of South Africa and leaves property or any document that is a will or is intended as a will; and
the death of a person who dies outside of the Republic of South Africa, but who leaves property and/or any document that is a will or is intended
as a will, in the Republic of South Africa, must be reported to the Master of the High Court.

Where must estates be reported?

Where the deceased was living in the Republic of South Africa, the estate must be reported to the Master of the High Court in whose area of jurisdiction the deceased was living 12 months prior to his/her death.
Where the deceased was not living in the Republic of South Africa at the time of his/her death, the estate may be reported to any Master of the High Court, provided it is reported to only one Master.
An affidavit in which it is stated that the letters of executorships have not already been grated by any other Master of the High Court in the Republic of South Africa must accompany the reporting documents.
From 5 December 2002, all Magistrates’ Offices are designated service points for the Master of the High Court and estates can be reported there. However, these service points have limited jurisdiction. All estates with wills, as well as estates that exceed R125 000 in value, will be transferred to the provincial Master’s Office. Therefore, it is advisable to report these estates directly the Master’s Office.
Note: If the estate value is less than R 250 000 and there is a minor heir, Legal Aid S.A.(LASA) can be contacted to assist in this regard.

When and by whom must estates be reported?

The estate of a deceased person must be reported to the Master of the High Court within 14 days of the date of death.
The death is to be reported by any person having control or possession of any property or documents that is or intends to be a will of the deceased.
The estate is reported by lodging a completed death notice and other reporting documents with the Master which may be obtained from any Office of the Master of the High Court , Magistrate’s Office.

How do you report an estate to the Master or to a service point of the Master of the High Court

Follow this link to read how report an estate to the Master or to a service point of the Master of the High Court.

Why you need an appraiser?

When property has to be valued in a deceased estate, it is normally done by an appraiser.

Appraisers are appointed for specific areas by the Minister of Justice and Constitutional Development in terms of section 6 of the Administration of Estates Act no. 66 of 1965. Appraisers are entitled to a reasonable remuneration which is determined by a prescribed tariff of fees. When there is a dispute regarding the correctness of the remuneration charged, the appraisers account must be submitted to the Master for taxation.

Wills

A will is a specialized document, which should preferably be drawn up by an expert like an attorney, trust company etc. The information is merely to inform the user of this site about some basic aspects of wills.

Instestate succession

Any person of 16 years and over is free to make a will in order to determine how his/her estate should devolve upon his/her death. If you die without a will, your estate will devolve in terms of the rules of intestate succession (your assets will, contrary to general belief, not go to the state).

Customary Law

What happens in the case of a customary union?
When a spouse alleges that he or she is a partner in customary union, proof in the form of a certificate of registration must be lodged (see Section 4(5)(b) of the Recognition of Customary Marriages Act 120 of 1998, as amended). Application for a registration certificate can be made to the Department of Home Affairs. The service point of the Master can assist with advice in this regard. When a certificate of registration cannot be lodged, enquiry in terms of section 5 of the Reform of the customary Law of Succession and Resolution of related matters Act 11 of 2011 can be held calling on witnesses from the family of the deceased and the surviving spouse to confirm existence of a customary marriage. The Office of the Master should be contacted to advise on the remedies available. The abovementioned reporting documents must be posted to, or handed in at the Master’s Office or service point.

How has customary law and the distribution of estates of deceased persons been affected by the decision in the case of Bhe vs The Magistrate Khayelitsha?
Customary law has been dramatically affected by the decision in the Bhe and others vs. the Magistrate Khayelitsha and another case, which changed the way estates of deceased persons will be distributed. It also changed the way the Department of Justice and Constitutional Development will supervise the administration of deceased estates.

What happened in the Bhe decision?
While he was still alive, the deceased lived with Ms Bhe and one of their two daughters in Khayelitsha. There was some doubt whether Ms Bhe and the deceased were married or not. Their second daughter lived with the father of the deceased in Berlin in the Eastern Cape. The deceased died without a will, and his estate was to be distributed in terms of customary law. This meant that the father of the deceased would have inherited the estate to the exclusion of Ms Bhe and her two daughters. The estate consisted of a shack and the property on which the shack was built. The father wanted to sell the property to pay for his son’s funeral.

If he proceeded, Ms Bhe and her children would have been destitute. Ms Bhe applied to Court to have her two daughters declared the only beneficiaries of her husband’s estate. The Constitutional Court held that the customary law of succession was constrained by Section 23 of the Black Administration Act, and was not allowed to develop to meet the changes in the society that it was meant to serve. As a result it stagnated and became out of touch with the realities of urbanization and changing family relationships. In its current guise it is unconstitutional since it iscriminates on the basis of gender and birth.

How did the Bhe decision change the way estates will be distributed?
All deceased estates will be distributed in terms of the Intestate Succession Act. This means that the beneficiaries in order of preference are: the spouse of the deceased; the descendants of the deceased; the parents of the deceased (only if the deceased died without a surviving spouse or descendants); and the siblings of the deceased (only if one or both parents are predeceased). The Intestate Succession Act should be read in such a way that it could accommodate cases where the deceased was a husband in a polygamous customary union.

When the deceased leaves only spouses and no descendants, the wives will inherit the estate in equal shares. When the deceased leaves spouses and descendants the spouses and descendants will inherit the estate in equal shares but each wife shall inherit at least R250 000. When the estate is not large enough to allow each wife to inherit the R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

How did the Bhe decision change the way the administration of estates will be supervised?
After the Bhe decision, deceased estates will all be administered in terms of the Administration of Estates Act (Act 66 of 1965, as amended). This implies that Magistrates will no longer supervise and administer deceased estates; only the Master of the High Court will do so. It also implies that the Master of the High Court does not have the power to administer estates on behalf of beneficiaries. The Master will appoint a suitable person to administer the estate.

Has the customary law of succession been abolished?
No, when planning his/her estate, a person may still arrange that his/ her estate be distributed in terms of customary law. This should be done by making a will. The Master of the High Court has a constitutional obligation to ensure the development of customary law. This should be done by allowing the family of a deceased to agree on the way the estate should be distributed. The Master of the High Court may not, however, allow vulnerable groups like women and children to be exploited as a result of a family agreement.

How are deceased estates now administered and distributed?
The Bhe decision fundamentally changed the way deceased estates will be administered and distributed. All estates will not be administered in terms of the Administration of Estates Act (Act 66 of 1965, as amended) and will be distributed in terms of the intestate Succession Act (Act 81 of
1987, as amended). It is important that all South Africans be made aware of these changes, so that they can plan their estates accordingly. The
Chief Master of the High Court has established a helpline where more information can be obtained. The number of this helpline is 012 406 4805 or e-mails can be directed to chiefmaster@justice.gov.za.