Deceased Estates in South Africa

We have answered a few of the frequently asked questions regarding wills, deceased estates, trustees and beneficiaries below. Having a better understanding of some of the key terms used by deceased estate handlers will help you understand the importance of obtaining legal advice regarding your will or right to inherit.

What is the deceased estate

The collective of assets, income and liabilities of the person who died is known as the deceased estate. Note that it is a legal term and not a person. Therefore the estate is vested in the Master of the Court and the executor or executors are appointed to manage or handle the estate.

What is the role of the executor?

The deceased estate handler has three main tasks to complete, the first being to collect all the assets and then to liquidate the liabilities of the estate, whereafter the balance (assets minus liabilities) are distributed to the appointed beneficiaries. The executor for the duration of the process also takes on legal guardianship over the assets. The executor is therefore not liable for the debts that are more than the assets in the estate and is only the legal representative of the estate.

What is an executor testamentary?

The Master of the High Court appoints the estate handlers called the executors dative unless the deceased stipulated in their will who should be the executor. In the latter instance, the term for such is executor testamentary.

How does the liquidation process work?

Once the executor has gathered all the assets, he must settle outstanding debts. For this purpose, certain assets may need to be sold in order to pay the debts. Once the debts have been paid the balance is then distributed to the beneficiaries. If there are no outstanding debts or there are funds available for payment of such debts then the executor doesn’t have to sell assets in order to get the required funds. Note that debts due can include the maintenance of the children or the spouse of the deceased.

What happens when the estate is insolvent?

If the liabilities exceed all assets in the deceased estate then the estate is insolvent. In such an instance the executor will notify the creditors of the insolvent status in writing and the estate will then be handled according to the regulations of the South African Insolvency and Estates Acts.

Can an executor recover overpayment to heirs?

Yes, if the heirs received more than what they should have then the executor can recover the overpayment from them.

Is there a difference between the legatee and the heir?

Yes. The people who receive benefit from the testament are beneficiaries. They can either be legatees or heirs. The legatees are the beneficiaries of the deceased estate only by succession and can only be nominated if there is a will. The heirs on the other hand can still inherit even if there is no will. A person or company can be a legatee or heir.

Note that the answers are by no means comprehensive. We recommend seeking legal counsel from our experienced lawyers regarding wills, deceased estate handlers, and any legal terms regarding deceased estates.