Deceased Estates in South Africa: A Step-by-Step Guide for Families and Executors

When someone passes away, their assets do not automatically transfer to their family.

Everything the deceased owned, including property, bank accounts, investments, vehicles, and debts, must first go through a formal legal process known as estate administration.

Understanding how this works can help families avoid costly mistakes during an already difficult time.

What Is a Deceased Estate?

A deceased estate is everything a person owned at the time of their death.

None of it can pass to beneficiaries directly. It must first be administered in terms of the Administration of Estates Act 66 of 1965, which governs how debts are settled and assets are distributed.

The entire process falls under the supervision of the Master of the High Court, who oversees the appointment of an executor and approves the final distribution.

Testate vs. Intestate: Does a Will Exist?

Whether or not the deceased left a valid will makes a significant difference to how assets are distributed.

• Testate estate: A valid will exists. The deceased's wishes guide distribution, subject to certain legal requirements.

• Intestate estate: There is no valid will. The Intestate Succession Act 81 of 1987 applies. Assets are distributed in a fixed order of priority: spouses and children first, then parents, then siblings.

It is also worth knowing that a surviving life partner in a permanent relationship may have inheritance rights.

The Constitutional Court has developed this area of law significantly. If your situation involves an unmarried partnership, early legal advice is essential, as timing can affect your rights.

The Role of the Executor

The executor is the person legally responsible for administering the estate. If a will names one, that person is typically appointed.

If there is no will, or the named person cannot act, the Master will appoint someone. This is often a close family member or a professional such as an attorney.

Once appointed, the executor receives Letters of Executorship from the Master. This document grants the legal authority to deal with banks, insurers, the Deeds Office, and SARS.

An important point that many families miss: nobody may access or move the deceased's assets before Letters of Executorship have been issued. Doing so can result in serious legal consequences, even for a spouse or adult child.

The Administration Process

Once the executor is in place, the administration follows a defined sequence. The estate is reported to the Master's office and creditors are notified through the Government Gazette and a local newspaper.

All assets are then identified and valued. The executor prepares a Liquidation and Distribution Account setting out all assets, all liabilities, and how the remainder will be divided among the heirs.

This account must lie open for inspection at the Master's office for 21 days. Any interested party may object during this period.

Once the Master approves the account, the executor can proceed with the final distribution.

Costs, Taxes, and Timelines

Executor fees are prescribed by the Administration of Estates Act at 3.5% of the gross value of the estate's assets, plus VAT where applicable. This is deducted before any payment is made to the heirs.

If the executor also handles income earned after the date of death, an additional fee of 6% may apply to that income.

Estate duty is a tax on the net value of the estate above the applicable threshold, in terms of the Estate Duty Act 45 of 1955. Assets left to a surviving spouse are generally exempt.

Capital gains tax may also be triggered on certain assets. Both the threshold and rates are reviewed annually. Confirm current figures with your attorney or directly with SARS.

How long the process takes depends on the complexity of the estate. A straightforward estate can be wound up in six to twelve months. One involving property, business interests, or unresolved tax matters can take significantly longer.

Why a Valid Will Matters

A valid, up-to-date will is the single most important step any adult can take. Without one, the law decides who inherits, and that outcome may have nothing to do with your actual wishes.

It is also worth considering who you nominate as executor and how your life policies are structured. A testamentary trust may make sense for minor children or dependants with special needs.

Frequently Asked Questions

Q: Do I need an attorney to administer a deceased estate in South Africa?

You are not legally required to appoint one. But it is strongly advisable. Estate administration involves strict deadlines, formal filings with the Master's office, creditor processes and tax obligations. An experienced attorney reduces your risk of errors and delays significantly.

Q: What happens if someone accesses the deceased's bank account before Letters of Executorship are issued?

This can be a criminal offence. It can also expose you to civil liability. No one has the right to deal with the deceased's assets before the Master has formally appointed an executor. This applies even to a spouse or adult child.

Q: How much does it cost to administer a deceased estate?

The main costs are the executor fee (currently 3.5% of the gross estate value, plus VAT), conveyancing fees if property is involved, Master's office fees, and any outstanding debts or taxes. We are happy to give you a realistic cost estimate at your first consultation.

Q: What is the difference between estate duty and capital gains tax on a deceased estate?

Estate duty is a tax on the net value of the estate above the applicable threshold. Capital gains tax is triggered on certain assets as if they were sold at market value on the date of death. Both can apply, but various exemptions exist. Your attorney and a tax adviser can walk you through this clearly.

Speak to a Deceased Estates Attorney in Cape Town

If you have been nominated as an executor, or if you are a family member trying to make sense of what comes next, early legal advice makes a real difference.

At Van Huyssteen Attorneys, we guide families and executors through the estate administration process with clear, practical advice and personal attention.

Disclaimer: This article is for general information only and is not legal advice. Every case is unique, and we recommend consulting a qualified attorney regarding your specific situation.