Fortunately, our legal system provides for freedom of testation which means that the person writing his will can provide for the distribution of his estate among friends, family, spouses and charities as he sees fit. He can also choose to disinherit a person from benefiting from his estate, subject to certain exceptions.
If a person chooses not to draft a will or his will is found to be invalid, he will be deemed to have died intestate and the laws of intestate succession will determine the distribution of his assets. The consequences to the family of someone dying intestate are never ideal and can lead to heartache for those left behind.
Here’s what happens when you die without a valid will:
Appointment of Executor
When you die without a will, the government is tasked with the job of appointing an Executor to your estate. The Master of the High Court may then appoint an Executor Dative to wind up your estate. The first job of the Executor Dative is to try and locate a will by making enquiries at places such as the deceased’s attorney, bank, accountant and insurers. If no will can be traced, the estate will be wound up as an intestate estate.
Matrimonial property regime
It is important to bear in mind that where the deceased was married in community of property, one half of the estate belongs to the surviving spouse and will therefore not devolve according to the rules of intestate succession. Only the deceased’s half of the joint estate will be available for distribution amongst the heirs.
Guardian of minor children
If you have minor children, the other parent will be the legal guardian to your children in the event of your death. However, in the case of simultaneous death or where the other parent is no longer alive, the state will have to appoint a guardian for your minor children. In the absence of a valid will, the state will need to determine the most appropriate guardian for your children, and it may not be the person you would have wished.
Rules of intestate succession
In terms of the Intestate Succession Act of 1987, your closest relatives will inherit from you under a strict, predetermined order of inheritance and proportions, with your spouse and children always benefiting first. If you do not have a spouse nor any children, then your extended family such as parents, siblings, nieces, nephews, uncles and aunts will qualify for inheritance. Bear in mind that intestate succession is limited to blood relatives, except for adopted children and your surviving spouse. The basic principles of intestate succession are as follows:
- If you have a spouse, but no descendants: Your spouse will inherit your entire estate in the event of your intestate death. Bear in mind that she will need to meet the definition of ‘spouse’ to qualify for an inheritance, and cohabiting couples may be at risk of being disinherited in these circumstances.
- If you have descendants, but no spouse: Your descendants (children) will inherit the entire estate equally. If any of your children predeceased you, their children (your grandchildren) will inherit their share.
- 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 calculated by dividing the estate by the number of surviving children, deceased children who have left offspring, plus the surviving spouse (or spouses in the case of polygamous marriages). Your spouse will, therefore, inherit the greater of either R250 000 or the child’s share, and your children will inherit equally from the residue of your estate. Once again, if one of your children predeceased you, his children will inherit their parent’s share.
If you leave no spouse or descendants but both your parents are alive, then your parents will inherit your estate in equal parts. If you only have one surviving parent, that parent will inherit your entire estate. Where you have no spouse, children or parents, your nearest blood relation will inherit the entire estate. If you have no relatives and no legitimate heir has claimed against the estate after 30 years, your estate will be forfeited to the state.
The child’s share calculation
Let’s assume that your estate is valued at R5 000 000 and that you leave behind a spouse and two children. Your estate will be divided by three (being your surviving spouse and two children), making the child’s share R1 666 667. As the child’s share is greater than R250 000, your spouse will inherit R1 666 667 leaving R3 333 333 in the estate. Thereafter, your two children will share equally from the residue of the estate amounting to R1 666 667 each.
It is important to bear in mind that any assets that devolve on your minor child from an intestate estate will be administered by the Guardian’s Fund. This fund, which is run by the Master of the High Court, determines how your minor children’s assets will be dealt with and administered. This can lead to complications and delays, especially where your minor children inherit a share of the fixed property which needs to be sold to cover expenses in your estate. These complications can be avoided by setting up a testamentary trust in terms of your will to protect the assets of your minor children.
The distribution of your retirement fund interests is at the discretion of the trustees of the fund. In determining who should benefit from your retirement fund interests, the trustees will take into consideration the people you have nominated on your beneficiary form as well as those people who are financially dependent on you – including your spouse, children, parents or live-in partner. If you have not nominated any beneficiaries and do not have any financial dependents, the fund will allocate your retirement fund interest to your estate and they will be distributed per the law of intestate succession.
In South Africa, cohabitation is not a recognised legal relationship and confers no legal status. Regardless of how long a couple has been living together or whether they have children together, their relationship has no legal standing in South African law (unless they can prove what is referred to as a universal partnership). If you die intestate, your live-in partner could be at risk of not benefiting from your estate even though it may be your intention to provide for her. To ensure that your partner is adequately provided for, it is essential to draft a will wherein you specifically name your partner and identify exactly which assets you would like to bequeath to her.
Drafting your will
Having a will professionally drafted is relatively inexpensive and is highly advisable. If your circumstances are simple and straightforward, you may choose to draft your own will – but bear in mind there are specific requirements that need to be met to ensure your will is deemed valid. Circumstances which would necessitate a professionally drafted will include:
- You are married;
- You have children;
- You have a business or shares in a business;
- You are divorced;
- You are cohabiting with your life partner;
- You have children with special needs;
- You have foreign assets.