Nobody likes thinking about what will happen when they’re no longer around. But making sure your loved ones are looked after is one of the most important things you can do for them.
One of the simplest ways to do this is by having a valid will. A will is a legal document that sets out who should inherit your assets, who should look after your minor children and who should be responsible for managing your estate after your death.
But what happens if you die without one?
In South Africa, dying without a valid will is known as dying intestate. When this happens, your estate is distributed according to the Intestate Succession Act 81 of 1987, as amended. The law determines who inherits your money, property and other assets, rather than allowing you to decide for yourself.
And while the law provides a system for distributing your estate, the results might not be what you would have wanted.
Who Gets What? How Intestate Succession Works
If you die without a valid will, your estate is divided according to a set legal formula. Who inherits depends on which family members are still alive when you pass away.
Before looking at the different situations, you need to understand something important if you are married in community of property.
In this type of marriage, you and your spouse each own an equal half of the joint estate. When one spouse dies, the surviving spouse keeps their own 50%. Only the deceased spouse’s half, after the estate’s debts and other relevant expenses have been dealt with, is distributed to the heirs.
If you are married out of community of property, the position is different because your estates are generally separate. Your spouse does not automatically inherit your entire estate simply because you were married.
Here is how the rules generally work:
- You leave behind a spouse but no children
If you are survived by a qualifying spouse but have no surviving descendants, your spouse inherits your entire intestate estate.
- You leave behind children but no spouse
Your children inherit your estate in equal shares.
If one of your children died before you but left children of their own, those grandchildren inherit the share their parent would have received. This is known as inheritance by representation.
Legally adopted children are also treated as descendants of their adoptive parents for inheritance purposes. Children born outside marriage have the same inheritance rights as other children.
- You leave behind both a spouse and children
This is where things become a little more complicated.
Your surviving spouse inherits either R250,000 or a child’s share of your estate, whichever amount is greater.
A child’s share is calculated by dividing the value of the intestate estate by the number of surviving children (including the shares represented by descendants of deceased children) plus the surviving spouse.
For example, if you leave behind a wife and two children, and your intestate estate is worth R900,000:
- Your wife counts as one share.
- Your two children count as two shares.
- The estate is divided into three equal shares of R300,000 each.
Your wife therefore inherits R300,000 because this is greater than the prescribed R250,000. The remaining R600,000 is divided equally between your two children.
The R250,000 is a minimum amount used in this calculation, not an automatic additional payment on top of a child’s share.
If you have more than one qualifying surviving spouse, including in a recognised polygamous customary marriage, special rules apply. The estate is divided between the qualifying spouses and descendants according to the legislation. Where the estate is insufficient to provide each qualifying spouse with the prescribed amount, the relevant statutory rules provide for equal division between the spouses.
- You leave behind parents but no spouse or children
If both your parents are alive, they inherit your estate equally.
If only one parent is alive, that parent generally inherits half the estate, while the descendants of your deceased parent inherit the other half. If your deceased parent left no surviving descendants, your surviving parent inherits the entire estate.
- You leave behind no spouse, children or parents
If neither of your parents is alive and you have no surviving spouse or descendants, the law looks at your wider family.
The estate is generally divided between the descendants of your deceased mother’s family and your deceased father’s family, according to the rules in the Act.
For example, your brothers, sisters, half-brothers, half-sisters, nieces and nephews may inherit, depending on the family relationships and which relatives have survived you.
If there are no surviving descendants of either parent, the estate passes to your nearest surviving blood relatives, who inherit in equal shares where they are equally close in degree of relationship.
- You have no surviving relatives
If no surviving spouse, descendants, parents or other qualifying blood relatives can be found, the estate ultimately devolves upon the State.
It is important to understand that the Guardian’s Fund is not simply where every estate without identifiable relatives is deposited. It is a fund administered by the Master of the High Court that holds money for people who cannot yet receive or manage it themselves, including minors, unborn heirs and untraceable beneficiaries.
Money remaining unclaimed in the Guardian’s Fund for 30 years from the date the beneficiary became entitled to claim it is forfeited to the State.
The Hidden Risks of Not Having a Will
You might think that the law will automatically take care of everything, but dying without a will can create problems for the people you leave behind.
Here are some of the things worth considering.
Your minor children’s inheritance may be placed in the Guardian’s Fund
If your minor children inherit money from your estate, that money is generally paid into the Guardian’s Fund for safekeeping and administration, unless a different arrangement is legally available.
Their surviving parent does not automatically have unrestricted access to the money.
A parent or guardian can apply to the Master of the High Court for money to cover reasonable expenses such as school fees, clothing, medical costs, accommodation and maintenance.
The money is generally held until the child reaches 18, unless another lawful arrangement applies.
A properly drafted will can provide for a testamentary trust, allowing appointed trustees to manage the inheritance for your children’s benefit. This can provide more control over how and when the money is used.
You lose control over who inherits your belongings
Without a will, you cannot choose who receives your family home, vehicle, savings, jewellery or other personal belongings.
The law decides who inherits, even if those arrangements are completely different from what you would have wanted.
Your loved ones may face additional delays and complications
When there is no will, there are no instructions from you about who should administer your estate.
The Master of the High Court must appoint an appropriate person to deal with the estate and issue the necessary authority.
This can create additional administration and may lead to disagreements between family members about who should take responsibility.
Even when you have a will, an executor nominated in the document must still be formally appointed by the Master before administering the estate.
People you care about may receive nothing
Perhaps you want to leave something to a close friend, a stepchild you have not legally adopted, a long-term companion who does not qualify as a permanent life partner with reciprocal duties of support, or a charity that means something to you.
Under intestate succession, these people generally do not inherit simply because they were important in your life.
A properly drafted will allows you to include people and organisations who would otherwise not qualify under the intestate succession rules.
A Will: Your Voice After You’re Gone
Having a valid will gives you the opportunity to make important decisions about what happens to your estate and how your loved ones are provided for.
It allows you to:
Choose who inherits your assets
You can decide who receives your property, savings, investments, personal belongings and other assets, subject to your legal obligations and any applicable restrictions.
Make provision for your minor children
You can nominate someone you would like to be appointed as guardian of your minor children, although the nomination does not automatically make that person their legal guardian.
You can also establish a testamentary trust in your will and appoint trustees to manage your children’s inheritance until they reach an age or meet the conditions you specify.
Choose an executor
You can nominate someone you trust to administer your estate, deal with the paperwork, settle outstanding debts and ensure that your instructions are carried out.
The Master of the High Court must still formally appoint the nominated executor.
Leave something to the people who matter to you
You can make provision for friends, extended family members, stepchildren, charities or other beneficiaries who might otherwise receive nothing under the intestate succession rules.
Reduce the risk of family disagreements
Clear instructions can prevent uncertainty about your wishes and make it easier for your loved ones to understand how your estate should be handled.
A will cannot guarantee that disputes will never happen, but it can help avoid unnecessary confusion.
What Makes a Will Legally Valid in South Africa?
Simply writing down your wishes does not necessarily make a document a valid will.
Under the Wills Act 7 of 1953, a will must generally meet certain legal requirements.
These include:
- The will must be in writing. It can be handwritten, typed or printed.
- The person making the will must sign at the end of the document, or another person may sign on their behalf in their presence and at their direction.
- The signature must be made or acknowledged in the presence of at least two competent witnesses who are present at the same time.
- The witnesses must sign in the presence of the person making the will and in each other’s presence.
- Where the will consists of more than one page, the person making the will must sign each page. The witnesses must sign the final page.
There are also restrictions concerning witnesses and beneficiaries, so it is best to use independent witnesses who are not beneficiaries under the will.
A court may, in certain circumstances, direct the Master to accept a document that does not comply with all the usual formalities, but this involves a legal process and should never be relied upon as a substitute for preparing a properly executed will.
Getting professional assistance when drafting your will can help prevent costly mistakes.
Don’t Leave Your Loved Ones Guessing
Nobody can predict what tomorrow will bring. But you can make sure your family isn’t left trying to figure out what you would have wanted after you are gone.
Dying without a will means the law decides who inherits your estate. Having a properly drafted will gives you the opportunity to make those decisions yourself, provide for your children and make things easier for the people you leave behind.
It does not have to be complicated or expensive, but it does need to be done properly.
A will is more than a document. It is a way of looking after the people who matter most, even when you are no longer there.
Don’t leave your legacy to chance!
Contact us today to schedule a consultation. Our experienced legal team can help you create a personalised will that reflects your unique circumstances and ensures your wishes are carried out.
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