Who Can Bring a Claim on Behalf of a Deceased?

In South Africa, a claim by or against a deceased person is brought by the Executor of the deceased estate once the Master of the High Court has appointed one under the Administration of Estates Act 66 of 1965. Before an executor is appointed, the Master has authority under section 18 to appoint an executor dative, or under section 25 to instruct a curator bonis to protect the estate’s interests in urgent matters such as prescription running out on a Road Accident Fund or contractual claim. The deceased’s own causes of action do not die with the deceased — they survive for the benefit of the estate and are prosecuted by the executor in that capacity, not in the deceased’s personal name.

The General Rule: The Executor Brings the Claim

The Executor of the deceased estate has legal standing to institute or defend civil proceedings on behalf of the deceased, once Letters of Executorship have been issued by the Master of the High Court. The Master is the official in the Department of Justice and Constitutional Development who supervises deceased estate administration, takes custody of wills, and authorises the appointment of executors.

The estate itself is treated as a separate juristic entity for the purposes of litigation. Actions are brought in the executor’s representative capacity on behalf of the estate, not in the deceased’s personal name. The Master’s appointment of the executor is published in the Government Gazette — until that publication, the executor does not have authority to act.

Burger Huyser Attorneys fields deceased estate administration through its Wills & Estates practice, headed by Director Anna-Mi Nel (who specialises in deceased estates and High Court litigation) and supported by a dedicated Deceased Estate Administrator, Lance Pearson. The firm operates from its Linden, Randburg head office with branches across Gauteng that can assist with executor applications and the prosecution or defence of estate-related claims.

Before the Executor Is Appointed: The Master’s Interim Authority

Wills and Estates work often moves faster than the Master’s appointment process. Between the date of death and the issue of Letters of Executorship, a window opens where the estate may need to act — and the deceased’s name cannot be used on the pleadings. Three interim remedies plug that gap:

Remedy	Statutory basis	When it is used
Executor dative	Administration of Estates Act 66 of 1965, s 18	Where no executor has been nominated in a will and no heir has come forward; the Master appoints an executor dative to administer the estate.
Curator bonis	Administration of Estates Act 66 of 1965, s 25	To safeguard the estate’s interests in urgent matters where no executor is in place — typically time-sensitive claims (e.g. prescription running out on a Road Accident Fund claim) or urgent proceedings on the estate’s behalf.
Curator ad litem	High Court’s inherent jurisdiction (Uniform Rules of Court)	Where neither has been appointed and an existing matter is on the court roll, an urgent application to the High Court is the practical route to protect the estate’s position in that litigation.

Claims the Deceased Had at the Time of Death

A cause of action the deceased had at the time of death (contractual, delictual, or statutory) does not die with the deceased. It survives for the benefit of the estate and is prosecuted by the executor as the deceased’s successor in title.

The executor may therefore institute a claim on behalf of the estate — for example against a third party for damages, breach of contract, or unpaid debts owed to the deceased. Conversely, claims against the deceased are submitted to the executor for adjudication in the liquidation and distribution account, not pursued against the heirs directly.

Claims Against the Deceased’s Estate

Creditors with claims against the deceased must lodge them with the executor within the period stated in the section 29(1) publication in the Government Gazette. The executor considers the claim, admits or rejects it with reasons, and the creditor’s recourse on rejection is to the Master and ultimately to the High Court.

Heirs are not personally liable for the deceased’s debts beyond the value of their inheritance. Claims against the estate are paid from the estate’s assets in the order set out in the Administration of Estates Act, not from heirs’ own pockets.

Specific Types of Claims and Who Brings Them

Claim type	Who brings it	Statutory basis
Road Accident Fund (RAF) claims	The executor, where the deceased died from injuries in a motor vehicle accident. The RAF may also have a claim against the estate for hospital and medical expenses already paid.	Road Accident Fund Act 56 of 1996
Maintenance claims out of the estate	The surviving spouse or child in their own name, not the executor.	Maintenance of Surviving Spouses Act 27 of 1990; Maintenance Act 99 of 1998
Contractual claims	The executor (e.g. outstanding invoices, insurance claims, pension fund death benefits, contractual breaches).	Common law of contract
Delictual claims	The executor where the deceased was wrongfully injured before death and survived long enough for a vested cause of action. Where death was instantaneous, dependants may claim loss of support in their own names.	Common law; dependant-care legislation

Practical Process: How a Claim Is Actually Brought

1. The executor (or curator bonis) appoints an attorney and, where necessary, instructs counsel.
2. The proceedings are filed in the executor’s representative capacity — the citation reads “Executor in the estate of the late [name], Master of the High Court Reference No. [estate number]”.
3. The Master’s appointment and Letters of Executorship are annexed to the founding papers to establish standing.
4. Where the claim is instituted before appointment, an application for appointment of a curator ad litem is filed in parallel.

Filing Through the Gauteng Master’s Office

Claims on behalf of a deceased estate are administered through the Master of the High Court, who sits at provincial offices across South Africa. For estates of persons ordinarily resident in the Gauteng area at death, the relevant seat is the Master’s office in Johannesburg (the Johannesburg seat of the Gauteng Division) or in Pretoria (the Pretoria seat), depending on the deceased’s last ordinary residence.

The Master’s office issues Letters of Executorship once the executor has been appointed and security has been furnished (or waived), and publishes the appointment in the Government Gazette. Only after that publication does the executor have authority to act. Where no executor is in place and an urgent claim needs to be instituted or defended, the Master’s office will process a curator bonis application under section 25 on an expedited basis where genuine urgency is shown.

When a Claim Cannot Wait for the Executor

Where prescription is about to run out, an urgent application for a curator bonis or curator ad litem is the usual route. An attorney advising a surviving family should confirm the relevant prescription period under the Prescription Act 68 of 1969 — section 12 sets the general three-year period, which can be extended in some circumstances by acknowledgement of debt or service of process.

Frequently Asked Questions

Does a claim die when the person dies?

No. A cause of action the deceased had at the time of death survives for the benefit of the deceased estate and is prosecuted by the Executor (or curator bonis) once appointed.

Who brings a claim on behalf of a deceased estate in South Africa?

The Executor, once appointed by the Master of the High Court and authorised by Letters of Executorship. Before an executor is in place, the Master may appoint a curator bonis under section 25 of the Administration of Estates Act 66 of 1965.

Can heirs of the deceased bring a claim themselves?

Generally no. Heirs do not have standing to bring a claim that belonged to the deceased; the executor must do so on behalf of the estate. Heirs may, however, institute a claim in their own names where they have suffered a separate loss such as a dependants’ claim for loss of support.

What happens if prescription is about to run out and there is no executor yet?

An urgent application should be made to the Master for a curator bonis under section 25 of the Administration of Estates Act, or to the High Court for a curator ad litem, to institute or defend the claim before prescription runs.

Can a creditor sue the heirs directly for the deceased’s debts?

No. Creditors must lodge their claims with the executor; heirs are not personally liable for the deceased’s debts beyond the inheritance they receive.

Who can bring a Road Accident Fund claim on behalf of someone who has died?

The executor of the deceased estate, where the deceased died from injuries in a motor vehicle accident, lodging the claim against the RAF under the Road Accident Fund Act 56 of 1996. The executor may also have to defend any RAF claim for reimbursement of medical expenses already paid.

If you are dealing with a deceased estate and need to bring or defend a claim, the Wills & Estates team at Burger Huyser Attorneys can advise on executor appointments, curator bonis applications, and the prosecution or defence of estate-related claims. Contact the head office in Linden, Randburg on 011 888 0246 (after-hours 061 516 6878), or any of the firm’s Gauteng branches, to book an initial consultation. The firm handles deceased estate administration alongside a wider practice that includes RAF claims, family law, and litigation, and is rated 4.8/5 across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).