Two laws, two questions
Where there is no will, or the will does not dispose of everything, the Intestate Succession Act 81 of 1987 decides who the heirs are. It treats the firearm as it treats any other asset of the estate. This guide does not set out the shares, which depend on who survived the deceased: the estate's attorney works them out.
Being an heir does not entitle a person to hold a firearm. The Firearms Control Act decides that: no one may possess a firearm without a licence, permit or authorisation for it (section 3), and an heir who wants to keep an inherited firearm must obtain the appropriate licence (section 148(1)).
| Question | Which law decides it |
|---|---|
| Who the heirs are | The Intestate Succession Act 81 of 1987 (general rule only; no shares here) |
| Who administers the estate | The Administration of Estates Act 66 of 1965: the Master of the High Court appoints the executor where nobody was nominated (section 18) |
| Who may possess, store and receive the firearm | The Firearms Control Act 60 of 2000 and the Firearms Control Regulations, 2004 (sections 3, 147 and 148; Regulation 103) |
Before the Master appoints an executor
Regulation 103(1) provides for the nominated executor and, where there is none, as in an intestate estate, an heir, next of kin or close relative to possess the firearms under a section 21 temporary authorisation (form SAPS 518) until the executor is appointed. A family member without that authorisation may not hold the firearm (section 3).
Ask the Designated Firearms Officer (DFO) at the police station which documents they need for the application. The documents checklist lists what the estate file needs.
The executor's duties are the same as with a will
The Regulation 103 guide reads each sub-regulation. The estate's attorney advises on how to treat an heir who is not yet confirmed when the 14 days run.
- Store the firearms and ammunition in a facility that meets Regulation 86, or with a licensed heir under a letter of consent filed with that heir's DFO (Regulation 103(2)). Section 147(2) requires the executor to store the deceased's licensed firearms as prescribed.
- Compile an inventory on appointment, and send the Registrar of the Central Firearms Registry a notice within 14 days of receiving the letter of appointment (Regulation 103(3)).
- Include in that notice, where the firearms devolve by testamentary or intestate succession, the names, addresses and identity numbers of all beneficiaries. In an intestate estate that means the heirs under the Intestate Succession Act, so the heirs must be identified early (Regulation 103(3)(b)).
- Report to the Registrar in writing at least every three months on the steps to transfer each firearm (Regulation 103(7)).
- Apply to the Master to finalise the estate only after the Registrar notifies that all the firearms have been transferred under the Act (Regulation 103(9)).
One firearm, several heirs
A firearm cannot be divided, and only an heir who obtains a competency certificate and a licence in their own name may keep it. Where several heirs share the estate they must agree who takes it, or that it is sold and the proceeds shared. Where the executor sells estate property the sale is on conditions the heirs approve in writing, and the Master approves it where an heir is absent, a minor or under curatorship, or the heirs cannot agree (section 47 of the Administration of Estates Act).
Each firearm then ends in one of four ways: transfer to a licensed heir, sale through a licensed dealer, deactivation or surrender. See the guide for heirs for the licence an heir needs, and what if no heir wants the firearm where none of them does.
Where nobody has been appointed yet
The 14-day notice and the three-monthly reports run from the letter of appointment, so they start once the Master has appointed an executor. Until then the firearms stay where they are, secured, with the person who holds them under a section 21 authorisation. If nobody holds one, tell the Designated Firearms Officer at your police station at once: a relative holding the firearm without an authorisation is in unlawful possession (section 3). Do not move or use it. Do not hand a firearm to a relative who has no licence, permit or authorisation for it: that is an offence (section 120(10)(a)).
How Firearmdesk helps
Firearmdesk prepares the Regulation 103 inventory and notice, the section 21 authorisation application, the letter of consent for a licensed heir and each three-monthly report for the executor or administering attorney, whether or not there is a will. It does not decide who the heirs are: that is for the estate's attorney and the Master. Refer an estate to hand the work over.
Questions
Who inherits a firearm when there is no will?
The heirs the Intestate Succession Act 81 of 1987 names, because the firearm is an estate asset like any other. The Act sets who the heirs are; it does not decide who may possess the firearm. That needs a licence, permit or authorisation under the Firearms Control Act.
Can a family member keep the firearm in an intestate estate?
Only if they hold a licence, permit or authorisation for it. Before an executor is appointed an heir, next of kin or close relative may hold the firearms under a section 21 authorisation (Regulation 103(1)); after appointment the executor stores them, or a licensed heir does under a letter of consent.
Who is responsible for the firearms when there is no will?
The executor the Master appoints, in the same way as when there is a will. Section 147(2) of the Firearms Control Act and Regulation 103 require the executor to store the firearms, notify the Registrar within 14 days of the letter of appointment and report every three months.
Does the notice to the Registrar need the heirs' details in an intestate estate?
Yes. Where the firearms devolve by testamentary or intestate succession, the notice lists the names, addresses and identity numbers of all beneficiaries (Regulation 103(3)(b)). In an intestate estate those are the heirs under the Intestate Succession Act.
What if the heirs cannot agree who gets the firearm?
Only one of them can hold it, and only if they qualify for a licence. Otherwise the executor sells it through a licensed dealer, or it is deactivated or surrendered. Under section 47 of the Administration of Estates Act the Master approves a sale where the heirs cannot agree.
Is the firearm treated differently from other assets in an intestate estate?
Not for who inherits it, but it carries extra steps: the Registrar must confirm each firearm is transferred before the executor may apply to the Master to finalise the estate (Regulation 103(9)), and an heir needs a licence of their own to keep it.
Sources
- Intestate Succession Act 81 of 1987 (SAFLII): who the heirs are where there is no valid will
- Firearms Control Act 60 of 2000 (SAFLII): sections 3, 21, 147 and 148
- Firearms Control Regulations, 2004 (SAFLII): regulation 103
- Administration of Estates Act 66 of 1965 (SAFLII): sections 18 and 47
- SAPS: questions on firearms in deceased estates