South African customary law refers to an usually uncodified legal system developed and practiced by the indigenous communities of South Africa. The different cultural laws by different tribes is managed by the customary law and these different rules are acknowledged by the Constitution.

When someone who was married according to Customary laws passes away,  the finalization of the estate might be a bit more tricky than usual.

When a spouse alleges that he or she is a partner in customary union, proof in the form of a certificate of registration must be lodged (see Section 4(5)(b) of the Recognition of Customary Marriages Act 120 of 1998, as amended).

In the court case of Bhe v the Magistrate of Khayelitsha the judge gave decision that changed the way in which Customarily married persons’s estates will be finalized.

In short the following:

While he was still alive, the deceased lived with Ms Bhe and one of their two daughters in Khayelitsha. There was no proof whether these two were married. Their second daughter lived with the grandfather in the Eastern Cape.  The deceased died without a will, and his estate was to be distributed in terms of customary law. This meant that the grandfather would have inherited the estate to the exclusion of Ms Bhe and her two daughters.

The wife (Ms Bhe) applied to Court to have her two daughters declared the only beneficiaries of her husband’s estate. The Constitutional Court held that the customary law of succession was constrained by Section 23 of the Black Administration Act, and was not allowed to develop to meet the changes in the society that it was meant to serve. As a result it stagnated and became out of touch with the realities of urbanization and changing family relationships. In its current guise it is unconstitutional since it discriminates on the basis of gender and birth

All deceased estates will be distributed in terms of the Intestate Succession Act. This means that the beneficiaries in order of preference are: the spouse of the deceased; the descendants of the deceased; the parents of the deceased (only if the deceased died without a surviving spouse or descendants); and the siblings of the deceased (only if one or both parents are predeceased).

After the Bhe decision, deceased estates will all be administered in terms of the Administration of Estates Act, 1965 (Act 66 of 1965, as amended). This implies that Magistrates will no longer supervise and administer deceased estates; only the Master of the High Court will do so.

For the full discussion see:  https://www.justice.gov.za/master/m_pamphlets/2011moh_faq%20A5.pdf