General Articles

What Happens if You Die Without Leaving a Will

Posted at October 1, 2012 | By : | Categories : General Articles | 0 Comment

There is a general misconception amongst people that if you die without leaving a Will, then your assets will be forfeited to the State.

This is not so. If you die without leaving a Will, then your assets will not be forfeited to the State.  In such an instance, your Estate will devolve in terms of intestate succession and the Act which governs it is the Intestate Succession Act  81 of 1987. This Act contains provisions relating to who will inherit your Estate and in what proportion they will inherit.

It is important to note that whilst your Estate will not be forfeited to the State if you die without leaving a Will, your assets will, however, be distributed in accordance with intestate succession as opposed to your own wishes and directions. Invariably, the distribution of your assets in this event will, in all probability, not be what you had intended.

The Intestate Succession Act is based on passing benefits to the blood family of the deceased. In other words, those family members closest to the deceased in terms of bloodline will inherit first. This is a simplistic view as it becomes more complicated.

The first difficulty that your family will experience is the appointment of an Executor to administer your Estate. Under normal circumstances, if you had died leaving a Will, then you would have appointed Executors of your choice. In this instance, your beneficiaries (your spouse and children) will have to nominate an Executor. The person who they nominate may or may not be the person you would have appointed. The person nominated by your beneficiaries, if it is other than the surviving spouse, will be required to file security to the satisfaction of the Master of the High Court. In certain circumstances, the chosen person does not qualify for the exemption and he will have to file security with the Master of the High Court which is difficult for an ordinary person to obtain.

Once the person nominated by the beneficiaries is appointed as Executor by the Master of the High Court, he will then proceed with the administration, liquidation and distribution of your Estate.

This is where the difficulty, and the complications, arise. The Intestate Succession Act determines who will inherit and in what proportions they will inherit.

So for example, if you were married at the time of your death, but did not have any children, then your spouse will inherit the entire estate. This may not necessarily be a problem. But then the difficulties arise.

If you die leaving both a spouse and a child or children, then your spouse will be awarded a share equivalent to a child’s share or R125 000,00, whichever is greater. This amount is determined from time to time by the Minister of Justice and Constitutional Development. The balance of the Estate will be shared equally by your children. If any of your children had predeceased you leaving descendants, then that predeceased child’s share will go to his or her descendants.

This, invariably, gives rise to problems for the surviving spouse. As a result of the inheritance awarded directly to your children, your spouse may be left with inadequate assets and funds to care for the children.

Should you die without leaving both a spouse and children, but both parents are alive, then your parents, who are the next closest relatives in terms of the formula set out in the Act, will inherit in equal shares.

If you die without leaving a spouse or children, but have only one surviving parent, the parent will inherit half the estate and the descendants of the deceased parent (your brothers and sisters) will inherit the other half. If there are no such descendants, the surviving parent shall inherit the entire estate.

If you die without leaving a spouse, parents or siblings then your estate will be distributed amongst your next closest living relatives, which in the normal sequence would be your grandparents and/or uncles and aunts

As intestate succession is based primarily on blood relationship, Illegitimacy shall not affect the capacity of a blood relation to inherit. An adopted child is considered a descendant of his adoptive parents and is entitled to inherit.

Should you die intestate without having anyone who could inherit your Estate, then it will be declared forfeited to the State. In other words, only in the event that no living relatives can be traced will the proceeds of the Estate devolve upon and be forfeited to the State.

Where Intestate Succession applies in a case of marriage in community of property, one half of the estate belongs to the surviving spouse and will not devolve according to the rules of intestate succession.

There is one further and major difficulty with regards to intestate succession. Should you die without leaving a Will, and have minor children, then, in the absence of the guardian being able to furnish security to the Master of the High Court, any cash due to your minor children will have to be paid into the Master’s Guardian’s Fund until your children attain majority. Then, too, the problems will not cease as it is extremely difficult to obtain release these funds from the Guardian’s Fund.

It is clear from the above that if it is your intention to benefit people other than your spouse, children, parents or relatives, then intestate succession will clearly not give effect to your wishes. This will also be the case if you want to differentiate between what you want to leave for your spouse and children and the amounts that you intend leaving them.

It may be your intention to leave a substantial portion of your Estate to your surviving spouse, or you may want your Estate to devolve in accordance with the tenets of Islamic Shariah. This will not happen if you die without leaving a Will.