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Intestate Succession: Where there’s no will, there’s a way

Intestate Succession

When an individual dies intestate, it means that they have died without leaving a valid Will or they have left a Will but the will itself is invalid. There are specific requirements which all Wills are required to adhere to as set out in the Wills Act No. 7 of 1953 (“the Wills Act”). The Wills Act provides for these requirements in section 2(1)(a) of the Act, in which it states that:

  • A testator (the individual who is making the Will) is to sign at the end of the Will, or by another individual in the presence of the testator; and by way of instruction from the testator;
  • The above signature is to be made in the presence of two or more competent witnesses. A “competent witness” is anyone who is above the age of 14, who is of sound mind and can appreciate the nature and consequences of his or her actions;
  • The witnesses, whilst in the presence of one another and the testator or person signing on behalf of the testator, are also required to sign the Will;
  • If the will consists of more than one page, each page is to be signed by the testator or the person signing on their behalf and the witnesses; and
  • If the testator signs the Will by way of a mark (for example, use of a fingerprint) or by someone acting on his or her behalf, a Commissioner of Oaths, Notary Public, Magistrate or Justice of Peace must certify at the end of the Will that the testator is known and identified by them and that the Will is indeed that of the testator. Should the will have more than one page, it is required to be certified on every page thereof.

Should you die intestate, who will inherit your estate?

The Intestate Succession Act No. 81 of 1987 (“The Intestate Succession Act”) shall apply if you should die intestate. The Intestate Succession Act will decide who will inherit your estate. The distribution of your estate is determined by a variety of possibilities based on which relatives are alive after you have passed away:

  • You are survived by your spouse, but have no children:
    In this instance, your spouse will inherit the entire estate.
  • You are survived by one or more children, but there’s no spouse:
    Your child(ren) will inherit the entire estate. The estate will be equitably divided should you have more than one child.
  • You are survived by a spouse and one or more children:
    As prescribed by the Minister of Justice, your spouse will inherit a “child’s share” or R250,000, whichever is the greater amount. The rest of your estate will be allocated to your child(ren). The aforementioned “child’s share” is calculated by dividing the value of your estate by the number of your surviving children or deceased children who have left their own children, and the number of your surviving spouse(s).
  • You are only survived by one or both of your parents and not by a spouse or children:
    In the instance that both your parents are alive, your estate will be equitably shared between them.
    You are not survived by a spouse, children or parents:
    Should you be survived by half-siblings from both your father’s side and your mother’s side, your half-siblings from your mother’s side will receive half of your estate divided in equal shares and in turn, the other half of your estate will be equally shared amongst your half-siblings from your father’s side.
  • You are not survived by any spouse, children, parents or half-siblings:
    In this instance, your blood relatives who are related to you in the nearest degree will inherit your entire estate in equitable shares.
  • You are not survived by anyone, not even blood relatives:
    Your entire estate will be forfeited to the State in this instance.

The abovementioned situations make it clear why it is so important to make a will that is in alignment with the requirements provided by the Wills Act, as a valid will provides for your intended distributions to be followed and implemented. Should your Will prove to be invalid or should there be no Will, the Intestate Succession Act will find application herein and all your wishes for the distribution of your estate will not be implemented.

Should you require assistance or insight into the legal specifications surrounding your estate, please do not hesitate to contact us

 

 

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