The family consequences of dying intestate are seldom ideal. If you die unexpectedly and unprepared without leaving a will, under South African law, your estate will be distributed according to the laws of intestate succession, as set out in the Intestate Succession Act of 1987. When you do not draw up a will, on your death, your assets may be distributed in a way that differs from what you may have chosen had you taken the opportunity to do so.
Understanding intestate succession
When a person dies without a will, their deceased estate (the assets they owned at the time of death) will be distributed in terms of the Intestate Succession Act, also known as the rules of intestate succession. The Act sets out specific rules regarding how the deceased estate must be distributed to their heirs (persons who will receive the deceased’s assets). The Act aims to distribute the deceased estate to their closest relatives first.
If only a spouse survives the deceased, the spouse will inherit their entire deceased estate. The term “spouse” also includes same-sex civil unions in terms of the Civil Union Act, spouses in religious marriages, and polygamous spouses in terms of customary marriages.
If the deceased person was divorced or unmarried and is only survived by their children, their children will inherit the deceased estate in equal shares.
If the deceased is married and has children, the spouse will receive a child’s share or R250 000 (whichever is the larger amount), and the children will receive equal shares of the balance of the estate.
If the deceased person did not have a spouse or children, their parents would inherit the estate equally. If one parent had died then the parent who survives would get half of the estate and all descendants of the other parent, would inherit the other half.
If there are no surviving parents then all the descendants of each parent (siblings and their children) would inherit the estate in equal shares.
There is no distinction between children born in a marriage and children born to unmarried parents, so they all inherit equally. If any of the children are under the age of 18, the money will be paid to the Guardian’s Fund (managed by the government) and it can be very difficult to access those funds.
If the unmarried mom of a child dies without a Will saying who the children should live with, the children may be sent to a father who has never taken care of them and their caregivers may be unable to access funds needed to care for the children.
In an intestate case, there is no choice about who inherits.
The importance of a will
By writing a Will, you ensure your belongings are divided among your chosen beneficiaries. Having a valid Will in place is the best way to avoid unintended consequences. The many other benefits of having a Will include: the ability to appoint guardians and caregivers for any minor children; limiting taxes payable on deceased estates; keeping a helpful record of assets that surviving relatives might not be aware of; helping to make sure your family do not experience a great deal of conflict trying to come to an agreement about who should be the executor.
It is advisable to have a person with the required legal knowledge and expertise, such as a lawyer, draw up your will. Blake Attorneys has the expert knowledge to ensure that your will is clear, concise, and reflects your true intentions. We also understand the tax and other financial implications that go hand in hand with dividing your estate. For more information regarding intestate succession in South Africa and for legal guidance with setting up your will, contact Blake Attorneys today so we can help you get started.