Dying Without A Will: Intestate Succession in South Africa

When a person dies in South Africa without leaving a valid will, the Intestate Succession Act 81 of 1987 will come into operation. The Act determines who will inherit the estate of a person who died without leaving a will or who died leaving a partially or fully invalid will.

When someone dies without leaving a valid will, they are said to have died ‘intestate’. Someone who dies with a valid will in place is said to have died ‘testate’. Someone who inherits from an intestate estate is known as an ‘intestate heir’. Various factors found in the Intestate Succession Act determine who the heirs of an intestate estate will be.

Factors influencing who your intestate heirs will be

Marital status. If you are married and do not have any children, the entire amount available for distribution will go to your spouse. Your marital property regime will also impact the distribution of your estate. If you are married in community (meaning you did not enter into an antenuptial contract at the time of your marriage), then only half of your estate will be available for distribution to your intestate heirs and the other half will automatically go to your spouse. If you are unmarried, the next factor to consider will be whether you have descendants.

Descendants. Whether you have children can impact the distribution of your estate greatly, depending on the value of your estate. If you are married and your estate is worth less than R250 000 (the current legislated amount at the time of writing this article), then your spouse will inherit your entire estate. If you are married and your estate is worth more than R250 000, your spouse will receive either R250 000 or a child’s share, whichever is the greater amount.

A child’s share is calculated by dividing the entire amount available for distribution by the number of heirs. If a child’s share of your estate equals less than R250 000, your spouse will receive R250 000 and the remaining amount available for distribution will be divided between your children equally. If a child’s share of your estate is more than R250 000, the amount available for distribution will be shared equally between your spouse and children. If you are unmarried and have children, the entire amount available for distribution will be divided equally amongst your children.

Parents and descendants of parents. If you die without a spouse or children, your estate will be distributed to your parents in equal half-shares. If one or both of your parents are predeceased, the predeceased parent’s half-share will be divided equally between any of their descendants i.e., your siblings or half-siblings.

Nearest blood relatives. If you die without being survived by a spouse, descendants, parents, siblings, or half-siblings, then your estate will go to your most closely related blood relatives. Examples include grandparents and cousins.

The state. If you are not survived by any blood relatives at all, and no claim is made by a legitimate intestate heir within 30 years, then your entire intestate estate will be forfeited to the Republic of South Africa, also known as the state.

Conclusion

If you die without a will in South Africa, the Intestate Succession Act 81 of 1987 will come into operation and determine who will inherit from your estate. The factors discussed above, namely whether you are married, have children, have parents that are alive or have siblings or other blood relatives, will impact the distribution of your intestate estate.

Dying without a valid will creates uncertainty for your loved ones and will increase the complexity and length of time required to administer your estate. This can be avoided by having a valid will drawn up by experienced professionals like our team at Marsh Fidelity.

To ensure that your will and your estate are in order and that your assets and loved ones are protected when you pass away, contact us today at [email protected] or visit our website at https://marshfidelity.wpenginepowered.com to find out more about our services.