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An executor or administrator is required to identify and locate all beneficiaries of an estate. They should search for information about the relatives of the deceased to determine the beneficiaries.

The Intestate Succession Act, 2019, along with The Wills Act, 1996 and The Family Property Act legislate who, in succession, would be a beneficiary of a deceased estate.

Beneficiaries are verified by obtaining executed heirship affidavits. Additional documentation to support the determination of beneficiaries may be required and may include birth, death, and marriage certificates, written confirmation of adoption and DNA testing.

The Administration of Estates Act does not define a common-law spouse, but The Interstate Succession Act, 1996 and The Wills Act, 1996 do. In cases where the status is an issue, an executor or administrator may require a person claiming to be a common law spouse to obtain a court order declaring the person to be a spouse. Based on court decisions, some factors to consider when determining whether or not a spousal relationship exists are:

  • shelter – whether the parties lived under the same roof, and the sleeping arrangements;
  • sexual and personal behavior – such things as whether they maintained an attitude of fidelity to each other, ate their meals together, assisted each other in illness, gave each other gifts, etc.;
  • services – who performed the chores necessary to sustain the household;
  • social – whether they participated together in community activities and how they conducted themselves around extended family;
  • societal – how the community viewed their relationship; and
  • support (economic) – how their finances were arranged and how they hold their property.

Legislation requires that, in certain circumstances, the estate cannot be distributed for six months after Letters Probate or Letters of Administration are obtained. These circumstances include:

  • dependants of the deceased may have a claim pursuant to The Dependants' Relief Act, 1996 because the will did not make adequate arrangements for their support. Dependants include a legal, common law or same-sex spouse, children under the age of 18 years; or children over the age of 18 years who by reason of physical or mental disability are not able to support themselves; and
  • a legal, common law or same-sex spouse who was not named as the sole beneficiary of the estate may apply for a division of the family property after the death of the other spouse.

It is necessary to confirm and locate all of the beneficiaries in an estate before estate assets can be distributed. In some estates, it is necessary to hire an heir locator to assist in the location of the beneficiaries even though it takes considerable time. Once the heir locator has indicated that he or she cannot go further, then it is necessary for the executor or administrator to make a court application for directions as to how to pay out the funds.

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