If a person dies without a valid Will, their estate will be administered in terms of the Intestate Succession Act, which prescribes how their assets should be distributed among surviving relatives. While the Act provides a framework for asset distribution, the process can be protracted, emotionally taxing, and administratively complex for heirs. In this article, we explore the consequences of dying intestate and highlight why drafting a valid Will remains one of the most important components of your estate planning.
Your heirs
In the absence of a valid Will, the Intestate Succession Act determines who inherits your estate, with the allocation of assets being dependent on the nature of your relationships at the time of death. Eligible heirs may include a spouse or life partner, biological and adopted children, parents, siblings, and other blood relatives. Note that, once it is established that no valid Will exists, the Act applies automatically.
The benefit of having a Will: A valid Will allows you to distribute your assets according to your wishes, beyond the constraints of intestate succession. You may choose to benefit individuals outside your family, including friends, charities, or trusts, and appoint specific entities or people to inherit designated assets.
Little-known fact: Life partners who are not legally married may still inherit in terms of intestate succession—but only if they can prove a reciprocal duty of support existed at the time of death.
Your matrimonial property regime
The nature of your marriage contract plays a significant role in how your estate is distributed. If married in community of property, keep in mind that your spouse is entitled to their 50% share of the net estate. If married out of community of property with the accrual system, your spouse may have a claim against your estate for their share of the accrual. Once debts and accrual claims are settled, the balance of the estate is distributed according to the Intestate Succession Act.
The benefit of having a Will: Testamentary freedom allows you to determine how your estate should be distributed, but keep in mind that this freedom is limited by your matrimonial property regime. For example, if married in community of property, you may not distribute your spouse’s half of the joint estate. Similarly, if married with the accrual system and your spouse’s estate is smaller, they may claim their share of the accrual from your estate. If you have excluded the accrual, each spouse is free to bequeath their assets. However, the Maintenance of Surviving Spouses Act may allow a surviving spouse to claim from the estate if they are not adequately provided for.
Little-known fact: A spouse’s claim under the accrual system takes precedence over any bequests in the Will—it must be settled before your heirs receive their inheritance.
Executorship
If you die without a valid Will, keep in mind that no executor is nominated, and the Master of the High Court must appoint one, referred to as an executor dative. In such circumstances, note that a surviving spouse may be appointed as executor, or heirs may nominate someone, subject to the Master’s approval. Note that where the estate is valued below R250 000, the Master may bypass the appointment of an executor and instead issue directions for liquidation and distribution. In terms of the Administration of Estates Act, the executor’s fee is 3.5% of the gross estate value plus VAT, and 6% (plus VAT) of income earned after death.
The benefit of having a Will: A testator may nominate an executor in their Will, referred to as an executor testamentary. This person must still be approved by the Master, but their appointment can significantly streamline estate administration. Further, a negotiated executor’s fee can be stipulated in your Will.
Little-known fact: You can nominate a professional (e.g., your financial advisor or attorney) as your executor, but the Master may still require that they lodge security unless exempted by the Will.
Legal guardianship of minor children
If a parent dies intestate and leaves behind minor children, guardianship is usually awarded to the surviving parent. However, if both parents die simultaneously or within a short period, the Master of the High Court will appoint a legal guardian, based on what is deemed in the best interests of the children, with the reality being that this appointee may not be the person the deceased would have chosen.
The benefit of having a Will: A Will allows you to nominate a legal guardian for your minor children, ensuring their care rests with someone you know and trust.
Little-known fact: A nominated guardian can only be appointed once the Master has considered their suitability, even if they are named in the Will.
Inheritance by minor children
It is important to know that children under the age of 18 cannot inherit directly as they lack legal capacity. As such, if children inherit in terms of intestate succession, their inheritance will be placed in the Guardian’s Fund, a state-managed fund overseen by the Master of the High Court. Accessing funds from the Guardian’s Fund can be a slow and bureaucratic process, and the interest earned is generally not market-related, which can erode the real value of the inheritance.
The benefit of having a Will: You can establish a testamentary trust in your Will to house and manage your minor children’s inheritance. The Will serves as the trust instrument and can name trustees to manage the assets until your children reach a specified age.
Little-known fact: Funds in the Guardian’s Fund must be claimed annually by the child’s caregiver, and unused balances do not roll over automatically.
Intestate succession rules
The Intestate Succession Act sets out the following rules for distributing assets when there is no valid Will:
(a) Surviving spouse and children: The surviving spouse inherits the greater of R250 000 or a child’s share. A child’s share is calculated by dividing the value of the estate by the number of children plus one (the spouse).
(b) Only a surviving spouse: The entire estate goes to the surviving spouse. In polygamous marriages, each spouse receives an equal share. A Constitutional Court judgment has confirmed that life partners—both same-sex and heterosexual—may qualify as intestate heirs if a reciprocal duty of support existed.
(c) Only surviving children: The children inherit the estate in equal shares. This includes both biological and legally adopted children, as well as children born outside of marriage.
(d) No spouse or children: The deceased’s parents inherit in equal shares. If one parent is deceased, that parent’s share devolves to their descendants (i.e., the deceased’s siblings and nieces/nephews).
(e) No spouse, children or parents: The deceased’s siblings inherit per stirpes (by representation).
(f) No spouse, children, parents or siblings: The estate is distributed to the nearest blood relatives.
(g) No heirs: If no heirs can be found within 30 years, the assets are forfeited to the state.
Drafting a valid Will allows you to override the rigid and impersonal rules of intestate succession. It empowers you to determine who should benefit from your estate, in what proportions, and under what conditions, ensuring that your assets are distributed in line with your personal values and relationships, rather than a statutory formula.
Family dynamics are often complex and evolving, and your personal wishes may differ significantly from the assumptions made by the law. As such, a Will gives you the opportunity to protect vulnerable dependants, provide for non-relatives, support causes close to your heart, and structure your legacy with intention and clarity. Ultimately, a carefully considered and professionally drafted Will is one of the most powerful tools you have to protect your loved ones and preserve your wishes beyond your lifetime.
Have a wonderful day.
Sue
