Missing Heir in a Deceased Estate? A Guide for South Africa

What happens when an heir to a South African deceased estate is missing? Learn about the executor's duties, the Guardian's Fund, and court applications. Expert legal guidance.

Introduction: What Happens if an Heir is Missing in South Africa?

A client asked: “When winding up the estate of the deceased, how does one deal with the fact that a primary beneficiary has disappeared and, despite best efforts, cannot be found? I am a second-tier heir.”

This is a challenging but not uncommon scenario in deceased estate administration. For residuary heirs and executors alike, South African law provides clear guidance to ensure the protection of missing beneficiaries’ rights and the proper handling of estate funds. This article unpacks the legal principles, statutory requirements, and practical steps for executors and heirs when faced with an untraceable primary beneficiary.

Written by Roy Bregman, an admitted attorney with over 51 years' experience in deceased estates and South African estate law.

Key Takeaways

• If a primary beneficiary in a deceased estate cannot be found despite reasonable tracing efforts, the executor must safeguard that beneficiary's entitlement by paying the unclaimed monies into the Guardians Fund administered by the Master of the High Court.
• These funds remain preserved for the missing beneficiary’s future claim and are not immediately distributed to other heirs.
• Alternative distribution (e.g., vesting funds in a secondary heir) can only occur through a specific court order, such as a declaration of death, supported by substantial evidence.
• Executors must follow statutory procedures (filing accounts, submitting evidence of tracing, and adhering to timelines) to ensure compliance with the Administration of Estates Act 66 of 1965.​

Legal Principles: The Administration of Estates Act 66 of 1965

What if the primary heir cannot be found?

Under the Administration of Estates Act 66 of 1965, when an executor is unable to distribute estate proceeds to a beneficiary, whether due to the beneficiary being untraceable, missing, or not legally presumed dead, the executor has a statutory obligation to protect those funds.

Key provisions include:

• Section 35(12) – Requires the executor to pay undistributable funds to the Master of the High Court for deposit into the Guardian’s Fund within two months of the estate becoming distributable.
• Section 35(13) – Explicitly covers cases where a beneficiary is an absentee, minor, unknown heir, or person under curatorship, mandating that their share be preserved in the Guardian’s Fund.
• Guardian’s Fund (Administered under the Guardian’s Fund Act 139 of 1989) – Acts as a custodian for funds due to missing or legally incapacitated beneficiaries until they (or their legal representatives) claim them.
• Forfeiture - Once deposited, if the funds remain unclaimed after a period of 30 years from the date they became claimable, they are forfeited to the state. During this time, the Master’s Office periodically publishes lists of unclaimed funds in the Government Gazette in an attempt to find the rightful owners. However, if no successful claim is made within the 30-year timeframe, the funds are permanently transferred to the National Revenue Fund and can no longer be claimed by the heir.

Practical Implications

• No Automatic Forfeiture or Redistribution – The missing beneficiary’s share does not automatically pass to other heirs (e.g., second-tier beneficiaries). The law preserves their entitlement until they are located or legally declared deceased.
• Executor’s Duty – The executor must:
• File a liquidation and distribution account with the Master.
• Provide proof of reasonable tracing efforts (e.g., tracing agency reports, affidavits of attempts to contact).
• Pay the missing beneficiary’s share into the Guardian’s Fund if distribution is impossible.
• Guardian’s Fund Process –
• The funds are invested and held in trust by the state.
• The missing beneficiary (or their heirs) can claim the funds at any time by proving their identity and entitlement.
• Interest may accrue, but administrative fees apply (currently 6% per annum on the capital amount).

Alternatives to the Guardian’s Fund

• When an heir is missing and their inheritance cannot be distributed, the primary legal obligation is to deposit the funds into the Guardian's Fund. The only way to bypass this and have the funds paid to other beneficiaries is through an order from the High Court that declares a missing person declared legally dead.
• The purpose is to convince the court, on a balance of probabilities, that the only reasonable conclusion from the available evidence is that the missing heir has passed away. The court will consider all relevant factors, such as the person's age, health, the circumstances surrounding their disappearance, the length of their absence, and the results of any tracing efforts. A simple lack of contact is often insufficient; there usually needs to be evidence suggesting a perilous situation or other circumstances that make death likely.
• If the court grants the order, the missing heir is considered legally deceased. Their portion of the inheritance can then be distributed to the next entitled beneficiaries (the second-tier heirs) according to the rules of intestate or testate succession.

It is crucial to understand that this is an exceptional legal remedy, and courts do not grant such orders lightly. The application requires substantial and compelling evidence.

What This Means for Your Estate

• If the primary heir remains untraceable and cannot be presumed dead:
• Their share must be paid into the Guardian’s Fund (Johannesburg Master’s Office).
• The second-tier heir (you) cannot claim this portion unless a court orders otherwise.
• If you wish to explore alternatives:
• A High Court application would be required, with strong evidence (e.g., prolonged absence, no financial activity, witness statements).
• Costs and success are not guaranteed—this is a last resort.

Conclusion

When a primary beneficiary in a deceased estate vanishes despite best efforts at tracing, South African law requires executors to safeguard that beneficiary’s entitlement by depositing unclaimed funds into the Guardians Fund. This process protects the absent beneficiary and maintains legal integrity. Only in rare and highly specific circumstances will courts permit alternative distribution.

FAQ Section

What is the Guardians Fund? The Guardians Fund holds estate monies on behalf of beneficiaries who are absent, minors, or legally incapable, preserving their rights for future claims.

Can a residuary heir claim the missing beneficiary’s share? No, unless a court order is obtained—otherwise, the share must be deposited in the Guardians Fund.

How long does the executor have to pay unclaimed funds into the Guardians Fund? Within two months from when the estate becomes distributable.

What evidence is required for the Master’s Office? Executors must provide liquidation and distribution accounts and detailed tracing report evidence proving diligent attempts to locate the missing heir.

Can courts declare a missing beneficiary presumed dead? Yes, but only in exceptional circumstances with substantial supporting evidence.

How do I trace a missing beneficiary in South Africa? To find a missing heir, the person managing an estate starts by checking the deceased's records and contacting family, then searches online and on social media. If those steps fail, they must hire a professional tracing agent to conduct a thorough search and provide a formal report. This process must be carefully documented to prove to the Master of the High Court that every reasonable effort was made before the inheritance is sent to the Guardian's Fund.

What is the time limit to claim from the Guardian's Fund? An heir has 30 years to claim their inheritance from the Guardian's Fund. This countdown starts from the day they were first able to claim it. If the money isn't claimed within this 30-year period, it is lost to the state and can no longer be recovered by the heir. To help find rightful owners, the Master's Office regularly publishes lists of all unclaimed funds in the Government Gazette. 

Struggling with a Missing Heir? Get Expert Legal Help Now.

Navigating a deceased estate is complex, especially with an untraceable beneficiary. Our experienced attorneys provide the clarity and solutions you need.

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