South Africa

The consequences of dying without a will in South Africa

If a person dies without having a Will, there is a chance that the estate will not be distributed in accordance with the deceased’s wishes.

Dying without a Will in South Africa, means your deceased estate will be administered under the Intestate Succession Act 81 of 1987 (“Act”), also known as the rules of intestate succession.

There are 5 rules relating to intestate succession:

  1. In the case where the deceased is survived by only a spouse, the spouse will inherit the full estate
  2. In the case where the deceased is survived by only descendants, the estate will be equally distributed between the descendants
  3. In the case where the deceased had a spouse and descendants, the spouse will get a child share or R250 000 whichever is the greatest, and the balance will be distributed equally between the descendants
  4. In the case where the deceased had no spouse nor descendants, his/her parents, aunts/uncles and or siblings will inherit the estate in equal shares
  5. In the case where the deceased had no spouse, descendants, aunts/uncles and or siblings, his/her closest relatives will inherit in equal shares

 

If the deceased had no relatives, the funds will be placed in the Guardians fund for a period of 30 years.  If no relative claims the money, the money will be distributed to the State.

Can an adopted child or a child born out of wedlock inherit under the Intestate Act?

In terms of common law, only a person’s blood relations were entitled to inherit intestate. The Act now provides that adopted children and children born out of wedlock are entitled to inherit intestate.

Do you need an Executor if you die Intestate?

An executor is normally nominated in your Will. When a person dies intestate an executor still needs to be appointed. One of the intestate heirs can be nominated as the executor, although the final decision will be made by the Master of the High Court.

In conclusion to the above, it is advisable to have a Will, drafted by a professional in the field, setting out how you wish your estate to be divided in the event of your death. This will prevent, unnecessary costs and delays in winding up your estate and ensure that the assets are distributed to your intended beneficiaries.

Jacomi Du Plessis

Supervisor, Deceased Estates, Johannesburg


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