What happens when a person dies without a will?

By 22nd October 2020Estate Planning
die without a will

Any person who is 16 years or older is free to make a Will regardless of how much property they own. One does not have to be rich in order to consider having a Will as a Will can cover many things besides material assets for example the guardianship of children upon a parent’s death, where and how one would like to be buried etc. It is much easier to deal with a Deceased Estate where there is a Will.

Where a person has died without a valid Will, the Estate is dealt with according to the Intestate Succession Act 81 of 1987 and the Administration of Estates Act 66 of 1965. According to these Acts, heirs to the Deceased Estate must nominate someone who will be responsible for dealing with the Deceased Estate and that person is known as an Executor. The Estate must then be reported to the Master of the High Court and the nominated Executor must also be officially appointed by the Master.

The Executor, once officially appointed will then be responsible for collecting all the property of the deceased, paying debts due by the Deceased Estate and then distributing the remaining property to the heirs. The Executor does not become the owner of the deceased property but merely takes control of the deceased assets for the purpose of distributing them to the heirs after all debts have been settled.

Before going any further, it is important to remember that if the deceased was married in a community of property, half of the Estate belongs to the surviving spouse and does not form part of the assets to be distributed amongst the heirs.

The Intestate Succession Act has prescribed strict rules on how the remainder of the deceased’s property should then be distributed, which are as follows:

  • If the deceased is survived by a spouse and has no children, the spouse will inherit everything.
  • If the deceased is survived by children but no spouse, the children will inherit the Estate equally. Where some of the deceased’s children have died, their children will inherit their share.
  • If a spouse and children survive the deceased, the spouse will inherit whichever is greater between R250 000 or an amount known as a “child’s share” which is calculated by dividing the total of the Estate by the number of children and spouse(s). The children will then inherit equally from the remainder.
  • If the deceased is not survived by either a spouse or children, the parents of the deceased will inherit the Estate equally.
  • If one or both parents of the deceased are also predeceased then the deceased’s siblings will inherit the share of their blood parent.
  • If the deceased has no relatives, the Deceased Estate will be forfeited to the State.

Two further points to note are that firstly, children as discussed above include children born outside marriage as well as adopted children. Secondly, a spouse does not include someone with whom the deceased has been in a cohabitation relationship.

From the above, it is clear that when one dies without a Will they relinquish control of how their assets and interests will be dealt with. Thus to avoid this it is essential that one have a valid Will to ensure that their wishes are carried out after their death.

For further information or assistance in drafting your will, please do not hesitate to contact us.



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