A carefully drafted will allows a person to provide for a spouse, children, extended family, friends, or charities in a way that reflects their wishes, family dynamics, and broader estate planning objectives. Where a person dies without a valid will, however, they are deemed to have died intestate, in which case their estate is distributed according to the Intestate Succession Act rather than according to their personal wishes. While the law provides a structured and logical formula for dealing with intestate estates, our experience as financial planners has shown us that the practical consequences for the family left behind can be far more complex than many people realise. This is not about fearmongering. It is simply about understanding that, without a valid will, important decisions are effectively removed from your hands and placed into a statutory process. Here’s what to know.
The appointment of an executor
When a person dies with a valid will, the will generally nominates the person or institution who should administer the estate. This provides clarity from the outset and, in many cases, allows the testator to negotiate executor’s fees in advance. Where there is no will, the Master of the High Court must appoint an executor dative to administer the estate. Before doing so, the Master may require the family to confirm that no valid will exists and to nominate someone suitable to act as executor. In straightforward families, this process may be relatively simple. However, in families where there is conflict, estrangement, blended family structures, or uncertainty around relationships, reaching agreement on who should administer the estate can be difficult and time-consuming. From a practical perspective, these delays can affect access to funds, the payment of estate expenses, the transfer of assets, and the family’s ability to move forward administratively.
Your marital regime matters
One of the most important aspects of intestate succession is that it cannot be considered in isolation from the deceased’s marital property regime. Where a person was married in community of property, only their half-share of the joint estate falls into the deceased estate, while the surviving spouse retains their half-share. Where the couple was married out of community of property with the accrual system, the accrual claim must first be calculated, and this can result in either a claim in favour of or against the deceased estate. Where the couple was married out of community of property without accrual, the deceased’s own estate is dealt with in terms of the intestacy rules. These distinctions are important because they affect what is available for distribution and can materially influence the financial position of the surviving spouse.
How the intestate succession rules work
The Intestate Succession Act sets out a formula for determining who inherits when there is no valid will. Broadly speaking, if the deceased leaves a spouse but no descendants, the spouse inherits the estate. If the deceased leaves descendants but no spouse, the descendants inherit equally, subject to the principle of representation where a predeceased child has left children of their own. If the deceased leaves both a spouse and descendants, the surviving spouse inherits either a child’s share or R250 000, whichever is greater, while the descendants inherit the balance. A child’s share is calculated by dividing the intestate estate by the number of surviving children, deceased children who have left descendants, and surviving spouses. The Department of Justice still reflects the surviving spouse’s minimum entitlement as the greater of R250 000 per spouse or a child’s share.
If there is no spouse or descendants, the estate passes to the deceased’s parents, failing which it passes to siblings or more distant blood relatives. If no heirs can be traced, the assets are paid into the Guardian’s Fund and, if no heirs come forward within the prescribed period, may ultimately accrue to the State. Importantly, keep in mind that the definition of ‘spouse’ has evolved over time. In the Bwanya matter, the Constitutional Court confirmed that excluding a surviving partner in a permanent life partnership from inheriting under the Intestate Succession Act was unconstitutional, where the partners had undertaken reciprocal duties of support.
The child’s share can produce unintended outcomes
Although the intestate formula appears simple, it can create outcomes that the deceased may not have intended. For example, assume a husband dies, leaving an estate of R5 million, a surviving spouse, and two minor children. In the absence of a valid will, the estate is divided into three child’s shares: one for the surviving spouse and one for each child. Because each child’s share is greater than R250 000, the spouse would inherit one-third of the estate, while each child would inherit one-third. This may be legally correct, but it may not be practically ideal if the intention was for the surviving spouse to inherit the full estate and continue providing for the children. We have seen situations where the surviving spouse is left having to navigate administrative restrictions, liquidity constraints, and co-ownership issues at precisely the time when stability and simplicity are most needed.
Minor children and the Guardian’s Fund
Where minor children inherit directly, their inheritance must be managed on their behalf. In certain circumstances, this can result in funds being paid into the Guardian’s Fund and administered until the child reaches majority. While the Guardian’s Fund serves an important protective function, it is not always the most flexible or practical solution for a family. A properly drafted will can create a testamentary trust to hold and manage assets for minor children, with trustees appointed to administer those assets in accordance with the deceased’s wishes. This can provide far greater flexibility in funding education, healthcare, maintenance, and other needs while protecting the capital for the child’s long-term benefit.
Immovable property can become complicated
Immovable property is often where intestacy creates the most practical difficulty. For example, where the family home forms part of the deceased estate, and there is no will, ownership may be divided between the surviving spouse and children. If minor children inherit a share of the property, the surviving spouse may need the necessary approvals before selling, bonding, or otherwise dealing with the property. Even where all heirs are adults, co-ownership can create complications if one heir wants to sell, another wants to retain the property, and another cannot afford the associated costs. In our experience, these situations can delay estate administration and create unnecessary tension between family members who are already dealing with grief.
Guardianship should not be left to chance
For parents of minor children, one of the most important functions of a will is the nomination of guardians. Generally, where one parent dies, the surviving parent remains the child’s legal guardian. However, if both parents pass away or if the deceased was the sole guardian, the absence of a will can create uncertainty around who should care for the children. While the court will ultimately act in the best interests of the child, most parents would prefer to make their wishes known clearly and thoughtfully. A will allows parents to nominate guardians and alternate guardians, taking into account shared values, family relationships, financial stability, location, schooling, and the emotional needs of the children.
Estate planning is about more than asset distribution
A valid will does more than determine who gets what. It allows for the orderly administration of the estate, the appointment of trusted decision-makers, the protection of minors, and the alignment of the estate plan with tax, liquidity, and family objectives. It can also help avoid avoidable delays, reduce uncertainty, and provide the surviving family with a clear roadmap. Importantly, a will should not be viewed as a once-off document. It should be reviewed when there is a marriage, divorce, birth of a child, death of a beneficiary, acquisition or sale of major assets, emigration, business change, or any other material shift in personal circumstances.
In our work as financial planners, we have seen firsthand that intestacy does not necessarily result in catastrophe, but it almost always results in a loss of control. The law will provide an answer, but it may not be the answer you would have chosen for your family. A valid, carefully drafted will remains one of the most practical and effective estate planning tools available. It gives structure to your intentions, clarity to your loved ones, and direction to those tasked with winding up your affairs. More than anything, it is an act of responsible planning that can make an already difficult time just a little easier for the people left behind.
Have a wonderful day.
Sue
