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Dying without a will: here’s what happens to your earthly possessions

Your estate will be distributed according to the guidelines of intestate succession.

Intestacy is not limited to those who pass away with writing out a will. Where a testator’s will is found to be invalid, he is deemed to have died intestate and the laws of intestate succession will apply accordingly as if he had died without a will. But what is intestate succession and how does it work?

How is intestacy determined?

After your death has been appointed to the Master’s Office, one of the first functions is to determine whether you left a will behind. If your loved ones cannot find a will, the Master of the High Court can appoint what is referred to as an Executor Dative to wind up your estate. If you are married, it is likely that the Master will appoint your spouse as the Executor Dative, although this is not always the case. The first function of the Executor Dative is to locate your will, if one exists, by making enquiries your bank, financial advisor, accountants or attorneys. If no will can be found, even if your loved ones are certain that one exists, you will be deemed to have died intestate and the appropriate legislation will apply.

What are the principles of intestate succession?

The aim of intestate succession is to provide a strict set of guidelines for the order and proportions of your earthly possessions to be distributed amongst your spouse and blood relatives, keeping in mind that your spouse and children always benefitting first. The rules of intestate succession aim to eliminate any uncertainty or guesswork when it comes to distributing your assets equitably amongst your heirs.

Does it matter how I am married?

Yes, your matrimonial property regime will impact on the distribution of your assets. If you are married in community of property, only 50% of the net joint estate will devolve amongst your heirs, while your surviving spouse will retain her 50% of the estate. 

Who will look after my children?

If you have minor children and are the first-dying parent, the surviving parent will be the legal guardian to your children. In the absence of a living guardian, the Master will appoint a guardian for your children after taking into account your children’s best interests. The nominated guardian could be an older sibling, uncle or aunt, grandparent or extended family member.

How much will my spouse and children inherit?

If you have a spouse and children, the method of calculating who receives what is determined according to a set of pre-determined rules which depend on your marital status and whether or not you have children. If you are married but do not have children, your spouse will inherit your entire estate. If you have children but no spouse, your children will inherit your entire estate in equal shares. If you have a spouse and children, your surviving spouse will inherit the greater of either a child’s portion or an amount fixed from time-to-time by the Minister of Justice, which is currently set at R250 000. A child’s share is determined by dividing your estate by the number of surviving children, deceased children who have left offspring, plus your surviving spouse. Your spouse will then inherit the great of either R250 000 or the child’s share, with your children inheriting equally from the residue of your estate.

How is a child’s share calculated?

Let’s assume that your estate is valued at R8 million, and you leave behind a spouse and three children. Your estate will be divided by 4, being your surviving spouse plus 3 children, making the child’s share R2 million. As the child’s share is greater than R250 000, your spouse will inherit R2 million, as will each of your children.

What about my common-law spouse?

If you and your partner are living together but are not legally married, keep in mind that our law confers no legal status on your relationship, meaning there is no such thing as a ‘common-law spouse’ in South Africa. As such, if you die without a will, your cohabiting partner does not stand to inherit anything from your estate in terms of the laws of intestate succession.

What rights do my illegitimate children have?

Our law does not distinguish between children born in or out of wedlock, and illegitimate children have the same right of inheritance as your legitimate children do.

What about my adopted children?

Adopted children are deemed to be descendants of the adoptive parent (or parents), and will therefore inherit from your estate as if they are natural children.

Do my parents stand to inherit?

Your parents will only stand to inherit if you do not have a spouse or descendants. If you have two living parents, they will inherit equally from your estate. If you leave behind one surviving parent, that parent will inherit half of your estate, while the descendants of your deceased parent will inherit the other half.

What about my extended family?

Your extended family and blood relatives only stand to inherit if you die without a spouse, descendants, living parents, or descendants of a deceased parent. In such a case, your blood relatives who are related in the nearest degree will inherit.

Who gets my retirement funds?

Money invested in your pension, provident, preservation and/or retirement annuity funds does not devolve on your heirs in terms of the laws of intestacy. Rather, it is the responsibility of the fund trustees to determine who your financial dependants are and to distribute the funds accordingly.

What happens if I have no relatives?

If you have no relatives and no legitimate heir makes a claim against your estate after 30 years, your estate is forfeited to the state.

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