What happens to my debt if I die?

Under South African law, must my family pay my debt if I die?

Discussions around death are never easy, and even more so in these difficult times. One thing is certain though - worrying about what will happen is made even worse if it is combined with lack of knowledge.

When a person passes on then their financial affairs, known as the estate, need to be wound up by someone called the executor. This person may have been named in the will and must be appointed by the Master of the High Court. The executor must use the assets of the deceased to pay off their debt and then distribute what is left over in accordance with the will or according to a legal formula if there is no (legal) will. No one other than the estate is responsible for the debt.

So, the family are not responsible for any of the debt that a person has when they die.

Married in community of property or by tradition

When you are married without an ante-nuptial agreement there is a difference. Here the joint estate of both partners must be wound up, with the remaining partner starting fresh from the day that the person dies. In effect this means that the estate, at the time of death, would be responsible for the debt of both partners. The remaining partner is not liable for any of the debt that was incurred in the marriage, no matter who’s name the debt was in.

If you are married and your partner dies, then you should make no attempt to pay the estates debts from any source other than the money in the estate.

If you were married with an ante-nuptial contract you must, however, continue to pay all your own obligations which do not form part of the estate.

What about other family members?

Family members, be it parents, grand parents, children or siblings are never responsible for each others debt unless they have signed a personal surety standing as guarantor for each other. This is true in life and it is equally true in death.