Who Can Claim Against a Deceased Estate in South Africa?

Under the Administration of Estates Act 66 of 1965, the following categories of person may lodge a claim against a deceased estate in South Africa: secured creditors (such as the bond holder over immovable property in the estate), preferent creditors (including the South African Revenue Service for any tax liability and employees of the deceased for limited preferent amounts), unsecured creditors (general trade and personal creditors), ex-spouses entitled to claim maintenance under section 21A of the Maintenance Act 99 of 1998 where a divorce action was pending at the date of death, dependants entitled to claim reasonable maintenance from the estate, heirs who allege the will does not properly provide for them, and beneficiaries whose legacies are not paid or whose conditions have not been met. Every claim must be lodged with the executor after the executor has published the section 29 advertisement in the Government Gazette and a newspaper calling on creditors to lodge claims; the executor then has 30 days from receipt of a claim to accept or reject it in writing, and a creditor whose claim is rejected may approach the Master of the High Court or file a claim with the appropriate court.

The Legal Framework Governing Claims Against a Deceased Estate

Claims against a deceased estate in South Africa are governed by a small group of interlocking statutes, read with the Master’s Office published practice directives and the rules of the High Court in which the estate is administered.

• Administration of Estates Act 66 of 1965 (as amended) — the controlling statute. It establishes the Master of the High Court’s oversight role, sets the procedure for the appointment of executors, requires the section 29 advertisement to creditors, governs the acceptance or rejection of claims, and prescribes how the liquidation and distribution (L&D) account is prepared and inspected.
• Insolvency Act 24 of 1936 — read with section 34 of the Administration of Estates Act, this determines the order in which creditors are paid (the “concurrence of creditors” waterfall: secured, then preferent, then unsecured).
• Maintenance Act 99 of 1998 (section 21A) — creates a specific statutory claim right for an ex-spouse where a divorce action was pending at the date of death, allowing that person to claim maintenance from the deceased estate.
• Divorce Act 70 of 1979 (section 7(2) and accrual claims) and the Children’s Act 38 of 2005 (sections 23 and 25 on parental responsibilities and rights, including the right to maintenance) — underpin dependants’ and children’s claims against an estate.
• Intestate Succession Act 81 of 1987 — governs distribution where the deceased died without a valid will.
• Prescription Act 68 of 1969 — applies to claims against heirs or beneficiaries personally where a debt of the deceased has been inherited.

SARS acts as a preferent creditor for any income tax, estate duty, donations tax, or other revenue liability of the deceased at the date of death, and the executor is required to notify SARS of the death and lodge the deceased’s final income tax return.

The Eligible Claimant Categories at a Glance

The full universe of eligible claimants against a deceased estate, and the statutory basis on which each category may claim, is consolidated below.

Category	Who qualifies	Basis
Secured creditors	Bond holder over estate property; any creditor holding a special mortgage, pledge, or other security	Section 34 of the Administration of Estates Act read with the security instrument
Preferent creditors	SARS (tax claims); employees of the deceased for limited amounts; funeral and last sickness expenses	Insolvency Act 24 of 1936, items 1–4 of Schedule 6, read with section 34 of the Administration of Estates Act
Unsecured creditors	Trade creditors, credit card issuers, personal lenders, medical accounts, unpaid service providers	Section 34 of the Administration of Estates Act
Ex-spouse maintenance claimant	A spouse against whom a divorce action was pending at the date of death	Section 21A of the Maintenance Act 99 of 1998
Dependants	Surviving spouse, minor children, adult children or other dependants in need of maintenance	Common law, section 23 of the Children’s Act 38 of 2005, and the Maintenance of Surviving Spouses Act 27 of 1990
Heirs	Person entitled to inherit under intestate succession or under a valid will	Intestate Succession Act 81 of 1987 or the will itself
Beneficiaries	Person named in the will to receive a legacy or usufruct	The will itself
Trustee of an insolvent estate	Where the estate is sequestrated, the trustee steps in place of the executor for creditor claims	Insolvency Act 24 of 1936

Secured and Preferent Creditors

A secured creditor — most commonly the bond holder over a property in the estate — may realise the security in accordance with its security instrument, but must still lodge a claim with the executor for any shortfall remaining after the security is realised. Preferent creditors rank ahead of unsecured creditors but behind the costs of administration and the secured creditor’s security. SARS ranks as a preferent creditor for any tax liability of the deceased at the date of death; the executor must notify SARS of the death and lodge an income tax return for the deceased. Employees of the deceased are preferent creditors for limited amounts (wages, salaries, accrued leave, and severance), with caps set by the Insolvency Act as it applies to deceased estates under section 34. Funeral expenses and last-illness expenses are also preferent within the statutory limits.

Unsecured Creditors: Trade Debts, Loans, and Personal Liabilities

Anyone who held a valid debt claim against the deceased at the date of death — credit card balances, store accounts, personal loans, medical accounts, unpaid service providers — may lodge a claim as an unsecured creditor. The executor adjudicates each claim against the supporting documentation and either admits it (in whole or in part), rejects it, or requires further information before deciding. An unsecured creditor cannot enforce payment out of estate assets directly; payment comes only after secured and preferent creditors have been settled and the L&D account has become final.

Maintenance Claims by Ex-Spouses, Surviving Spouses, and Children

Maintenance claims against a deceased estate fall into three overlapping categories, each with its own statutory hook.

• Ex-spouse under section 21A of the Maintenance Act 99 of 1998 — a spouse against whom a divorce action was pending at the date of death may lodge a maintenance claim against the deceased estate as if the divorce had already been granted. The claim is lodged with the executor or, if rejected, with the Master or the High Court. Section 21A claims are not automatic and must be actively pursued.
• Reasonable maintenance for dependants — surviving spouses, minor children, and other dependants can apply to the executor (and ultimately to the Master or court) for reasonable maintenance out of the estate during the administration period. The Master of the High Court and the Family Court have concurrent jurisdiction over dependants’ maintenance claims against a deceased estate.
• Inadequate provision in the will — the High Court may order that provision be made for a surviving spouse or minor child even where the will makes no or inadequate provision for them.

Children’s claims are typically mediated through a maintenance court enquiry or a claim lodged with the executor; a minor child cannot lodge a claim personally, and the claim must be lodged by their guardian or tutor, or by a curator ad litem appointed by the Master.

Heirs and Beneficiaries: Claims About the Will Itself

A person who is an heir under intestate succession (where there is no valid will) may challenge the appointment of an executor or the distribution of the estate where the executor has failed to follow the Intestate Succession Act. A beneficiary under a will who has not received a legacy may claim against the executor for delivery of the legacy or for damages for breach of fiduciary duty. A disinherited child or surviving spouse may bring a claim for maintenance or for a share of the estate under section 23 of the Children’s Act, the Maintenance of Surviving Spouses Act 27 of 1990, or the common law. Beneficiaries whose legacies are subject to a condition precedent may need to apply to the Master for directions if the executor refuses to pay out.

The Claims Cycle: From Section 29 Advertisement to Executor Decision

The creditor-claims cycle in a deceased estate follows a fixed sequence under the Administration of Estates Act.

1. The executor applies for, and is granted, Letters of Executorship (or Letters of Authority, where appropriate) by the Master of the High Court.
2. The executor publishes a notice in the Government Gazette and a newspaper circulating in the district where the deceased was ordinarily resident, calling on creditors to lodge claims within a stated period (commonly 30 days, but no less than 14 days as required by the Act).
3. Creditors lodge their claims on the prescribed form (the Master’s J193 claim form, sworn to by the creditor or the creditor’s authorised representative) together with supporting documentation.
4. The executor has 30 days from receipt of a claim to accept or reject it in writing; if the executor fails to respond within that period, the claim is deemed to have been accepted.
5. The executor prepares a liquidation and distribution (L&D) account reflecting all admitted claims and the proposed distribution, which is lodged with the Master for inspection.
6. The Master inspects the L&D account; creditors and heirs may inspect it and lodge objections within the inspection period (typically 21 days).
7. After the L&D account becomes final, the executor distributes the estate in accordance with it.

Which Master’s Office Has Jurisdiction

For a deceased ordinarily resident in Gauteng at the date of death, the Master of the High Court with jurisdiction is the Master’s Office serving either the Johannesburg or the Pretoria seat of the Gauteng Division of the High Court, depending on where the deceased resided at death. Confusing the seat is a common mistake — for Johannesburg-resident estates, the Master’s Office in Johannesburg handles the appointment of executors and the inspection of the L&D account, while Pretoria-resident estates are filed at the Master’s Office in Pretoria. Estates filed in the wrong Master’s Office are typically delayed or rejected, and the Master checks jurisdiction at the point of appointment of the executor; practitioners and executors must verify the deceased’s ordinary residence at the date of death before lodging the application for Letters of Executorship.

What Happens When a Claim Is Rejected

A creditor whose claim is rejected in whole or in part has a clear escalation path. The creditor may first approach the Master of the High Court for a review of the executor’s decision. If the Master’s review does not resolve the dispute, the creditor may file a claim with the appropriate court — the Magistrate’s Court for claims within its jurisdiction, or the High Court for larger or more complex claims. An executor who rejects a claim without reasonable grounds may be held personally liable for any loss sustained by the creditor, and the executor must give written reasons for any rejection.

Time Limits and Lapsing of Claims

Timelines are strict, and missing them can extinguish a claim. A claim not lodged within the period stated in the section 29 advertisement may be barred — the executor is entitled to refuse payment of late claims unless the estate has not yet been finally distributed. Claims by dependants for reasonable maintenance may be lodged at any time before the L&D account becomes final. An ex-spouse’s claim under section 21A must be lodged within the period prescribed by the Master or within the section 29 advertisement period. A claim against an heir or beneficiary personally (for example, a debt of the deceased that the heir has inherited under a benefit) follows the ordinary prescription rules of the Prescription Act 68 of 1969.

Frequently Asked Questions

Who can claim against a deceased estate if there is no will?

Where the deceased died intestate (without a valid will), the estate is distributed under the Intestate Succession Act 81 of 1987. Creditors (secured, preferent, and unsecured) retain their priority claims against the estate assets, and the heirs identified by the Intestate Succession Act are entitled to inherit. Any person with a valid debt claim at the date of death may still lodge a claim with the executor; the absence of a will does not extinguish creditor claims, it simply means the estate is administered without testamentary direction.

Can an ex-wife claim maintenance from her deceased ex-husband’s estate?

Yes, under section 21A of the Maintenance Act 99 of 1998, a spouse against whom a divorce action was pending at the date of death may claim maintenance from the deceased estate as if the divorce had already been granted. The claim is lodged with the executor or, if rejected, with the Master or the High Court. Section 21A claims are not automatic and must be actively pursued; they do not survive indefinitely and are subject to the Master’s claims process and inspection periods.

Does SARS have to be paid before other creditors?

SARS is a preferent creditor for any tax liability of the deceased at the date of death, including income tax, estate duty, and any other revenue amount due. Preferent creditors rank above unsecured creditors but below secured creditors (in respect of their security) and below the costs of administration. In practice, SARS ranks second in the waterfall after secured creditors and the costs of administering the estate.

Can a child claim against a deceased parent’s estate?

Yes — a child (minor or adult) may be a creditor if the deceased owed them money at the date of death, a dependant if they relied on the deceased for maintenance, and an heir if the deceased died intestate or named them as a beneficiary. A minor child cannot lodge a claim personally; the claim must be lodged by their guardian or tutor, or by a curator ad litem appointed by the Master.

What is the difference between a creditor and an heir?

A creditor is owed money by the deceased (a debt) and is paid out of estate assets in the order of preference set by the Insolvency Act read with section 34 of the Administration of Estates Act. An heir is a person entitled to inherit under the will or under intestate succession, and only receives a share after all creditors have been paid and the L&D account has become final. An heir is not paid from the same pool as a creditor in priority — heirs come after creditors in the waterfall.

How long does a creditor have to lodge a claim?

The executor’s section 29 advertisement states a period within which creditors must lodge their claims; commonly 30 days, but no less than 14 days as required by the Act. A creditor who fails to lodge within the stated period may be barred from later payment unless the estate has not yet been finally distributed. The Master can extend the period in limited circumstances, and dependants’ maintenance claims follow different timing rules.

If you are a creditor, dependant, heir, or beneficiary with a question about a claim against a deceased estate — whether to lodge one, defend one, or contest an executor’s rejection — contact Burger Huyser Attorneys’ Wills & Estates team at the head office on 011 888 0246 (after-hours 061 516 6878) or visit the firm at 49 First Avenue, Linden, Randburg, 2194. The firm administers deceased estates, drafts and lodges creditor claims, responds to rejected claims, and represents dependants and heirs in the Master’s Office and in the Gauteng Division of the High Court where necessary, supported by the firm’s Deceased Estate Administrator, Lance Pearson, and Director Anna-Mi Nel (Head of Family Law, specialising in deceased estates and High Court litigation). Initial consultations are booked through the Linden office directly; bring the death certificate, the will (if any), the Master’s reference number, and any correspondence with the executor. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and handles deceased estate work across its Gauteng branches.