An heir who accepts an estate unconditionally is liable for all the deceased’s debts. This may mean that the heir has to make up the shortfall from his or her private assets. This can be avoided by renouncing the estate, but the disadvantage of this is that the heir is then also not entitled to the surplus (and/or individual assets) of the estate.
The intermediate form is accept with conditions (the legal term for this is: accept subject to the right to draw up an inventory of the estate). The heir is then not required to settle the debts of the estate from their private assets, but is entitled to any surplus from the estate. The renunciation or acceptance under benefit of inventory of an estate is effected by means of a declaration to the court (usually arranged by a notary).
No such declaration is required for simple acceptance; this may already be evident from an heir’s conduct in relation to the estate (for example, clearing out the testator’s home or removing goods from the property constitutes unconditional acceptance of the estate). Heirs who are considering not accepting an estate outright must therefore think carefully about the actions they take. Once the estate has been accepted outright, this decision cannot be reversed.
The Minister for Security and Justice has tabled a bill in Parliament to provide that an heir may still apply to the subdistrict court to accept the inheritance under the benefit of inventory should an unexpected debt of the testator come to light. This is a debt of which the heir was unaware, and was not reasonably expected to be aware, at the time they accepted the estate unconditionally. The heir is deemed to have actively investigated the nature and extent of the deceased’s debts. Consequently, an unexpected debt will only arise in exceptional circumstances. The application to accept the estate under the benefit of inventory must be submitted to the magistrates’ court within three months of the unexpected debt being discovered.
The bill also stipulates that an estate is deemed to have been accepted unconditionally only when the heir carries out acts of disposal in respect of the estate. This includes, for example, selling, encumbering or otherwise removing assets from the estate in a way that prevents creditors from recovering their claims. The explanatory notes to the bill cite as an example of an act that does not lead to unconditional acceptance: taking the family photo album from the testator’s home. This photo album has purely sentimental value and does not constitute an asset from which the estate’s creditors can seek recourse.
It is not yet known when the (proposed) new rules will come into force.