By Sanette Viljoen – SV Legal
Set of facts: John lends Peter R300 000. Peter fails to comply with the repayment agreement and John acquires sentence against Peter for the debt. After eight months have passed and various promises of payment, John decides to attach Peter’s assets. However, John is informed that Peter passed away four months ago, but no-one intends reporting the estate. May John, as a creditor against the estate, report it?
The short answer to the above question is, yes. John may report Peter’s estate. This process is regulated by sections 18 and 19 of the Estate Act no. 66 of 1965.
As soon as an estate exists, no-one may attach the assets of the deceased, but action needs to be taken against the estate, as now the sentence is against the estate, and the estate first has to be administered. After the administration of the estate the creditor’s claim will be paid or not be paid.
Section 18 of the Estate Act stipulates that should any person pass away:
- without having a will; or
- without having assigned an executor; or
- if no executor can be found; or
- if the executor is incapable or refuses to act as executor; or
- if the assigned executor stops acting as executor, for example due to his/her death;
then die Master may appoint a person or persons whom he considers competent, to serve as executor/s of the will of the deceased.
The above-mentioned section boils down to the creditor being able to report the estate himself and at the same time the creditor can request to be appointed executor or even nominate someone to be appointed as executor.