How can I help my minor child claim his inheritance if I don't have access to his deceased parent's documents?

The long answer

All deaths must be reported to the Master of the High Court within 14 days of death. The documents that are needed to report the death to the Master include the death certificate, the ID, and a will, if the person left a will. In that way, a deceased estate comes into being. All bank accounts of the deceased person are frozen and no one is allowed to dispose of any assets of the estate until a Representative with a Letter of Authority, or an Executor, is appointed by the Master. 

A Representative with the letter of authority is appointed to wind up estates valued at less than R250,000, and an Executor is appointed if the estate is valued at more than R250,000. Their duties are to collect the property/assets of the deceased, pay all the debts, and then distribute what is left to the heirs. The procedure for winding up a deceased estate is simpler when a Representative is appointed than when an Executor is appointed.

If your son’s father left a will, he is said to have died testate. If he did not leave a will, he is said to have died intestate, and the Intestate Succession Act of 1987 would apply. Under this Act, a deceased person’s property is distributed to his family in the following order:

1. Spouse/s

2. Descendants

3. Parents

4. Siblings

5. More distant relatives 

In winding up a deceased estate, after creditors have been paid, a minor child’s claim for maintenance and education takes first place over the claims of heirs and legatees. (Legatees are those who have been left specific things in a will. So, if there was no will, there cannot be legatees, but there can be heirs.) So, whether your son’s father made a will or died intestate, your 12-year-old son’s claim for maintenance must come before other claims, whether he was born in a marriage or outside of a marriage.  

This is because it is a parent’s common law duty to support a child; this duty continues until a child is self-supporting, and this duty of support goes on even after the death of one of the parents. This is because the duty of support only ends when the child dies, not when the parent dies.

If your son’s father did not make provision for supporting your son in his will, or did not make a will, your son would still be able to make a claim for maintenance and education from his father’s deceased estate. 

Law Guide says in an article on the South African law of succession that if there was not enough money in the deceased estate to cover the total maintenance and education of the children, the children would each receive a pro rata amount. They went on to emphasise that as the child’s right to claim for maintenance and education comes before all heirs and legatees, it must be dealt with first, after creditors had been paid.

“A child’s share in relation to the intestate estate of the deceased is calculated by dividing the monetary value of the estate by a number equal to the number of children of the deceased, plus surviving children of pre-deceased children. To calculate a child’s share, the estate is divided into as many children’s shares as stated above, plus an additional share, which the surviving spouse takes.”

Where the deceased is survived by more than one spouse, each spouse gets a child’s share and an amount fixed from time to time by the Minister (presently R250,000).

If there is no surviving spouse /s, the descendent or descendants will inherit whatever is left of the intestate estate.

If your son’s father did have a will and left your son some money, that money would also have to paid into the Guardian’s Fund of the Master of the High Court. 

You as the person looking after a minor child could make a claim from the Guardian’s Fund for maintenance, such as school and university fees, clothes, medical fees, and any other needs that you could motivate. You would need to provide the following documents:

• Application form J 341 CEFTU 3 and copy of a recent bank statement (stamped and signed by the bank),

• Guardian’s Fund Affidavit Form (with first applications),

• Form indicating the “Nature of Assistance required from the Guardian’s Fund, and how arrived at” supported by quotations and accounts,

• Certified copy of the applicant’s ID with both thumbprints,

• Verification report of the applicant’s fingerprints. 

Payments can be made by the Guardian’s Fund directly to the service provider, like schools, universities, bookshops, etc. When the child is 18 years old, he can claim whatever money there is remaining in the Guardian’s Fund.

The Law Society of South Africa (LSSA) reported on Circular 59 of 2023 put out by the Justice Department about deceased estate matters, which was intended to make the Master’s Offices work better, be more transparent and guard against corruption. According to the Circular, cash due to minor heirs must be deposited in the Guardian’s Fund 60 days from the date of appointment of a representative or an executor. A note confirming this must be put into the letter of authority.

The Law Society also noted the Circular’s recommendation that where minor heirs were involved, the Master should refer the estate to Legal Aid South Africa to see if they could assist.

So, perhaps your first move should be to contact the Master of the High Court in the area that your son’s father lived in, explain that your son’s father has died and that his family refuses to give you his ID and death certificate, and that you need assistance to lodge a claim for maintenance and education of your son against his father’s deceased estate. You should take your ID and your son’s birth certificate and anything else that confirms that the deceased was your son’s father.

The Master will be able to tell you if the death has been reported, who the Representative or Executor is, and how far the winding up process is.   

Recently the Justice Department lodged an online tracking system as well. 

The Free Lawyer website gives a step-by-step guide on how to track a deceased estate using the online system:

1. Access the Department of Justice Website: Visit the Department of Justice and Constitutional Development website (https://www.justice.gov.za/).

2. Navigate to Deceased Estates: Look for a section or link related to deceased estates or estate administration. This might be under “Magisterial Services” or “Services.”

3. Search for the Estate: The specific search function might vary depending on the website’s design. You can potentially search by deceased’s name or estate number (if you have it).

4. View Estate Details (if available): If a match is found, the system might display basic details regarding the estate, such as the administering Master’s Office or a reference number.

You could also ask the Black Sash to help. They give free paralegal advice. Here are their contact details: 

Email: help@blacksash.org.za

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865.

And you could also contact Legal Aid yourself. It is a means-tested organisation that must help people who can’t afford a lawyer. Here are their contact details:

Email: communications2@legal-aid.co.za

Helpline: 0800 110 110 (Monday to Friday 7AM - 7PM) 

Please Call Me: 079 835 7179

Wishing you the best,
Athalie