What happens if I die without a will?
Contrary to popular belief – if you die without a will in South Africa, your assets will not go to the State. Only in cases where a deceased is not survived by any relative will his/her estate devolve upon the State.
If you die without a will, your estate will devolve in terms of the rules of intestate succession and more specifically the Intestate Succession Act (Act 81 of 1987).
Firstly, it is important to understand the application of the Intestate Succession Act in relation to your matrimonial property regime:
Marriage In Community of Property
If you are married in community of property, 50% of the joint estate automatically belongs to your spouse. Therefore, only your 50% share will be subject to the Act.
Marriage Out of Community of Property with Accrual
The rules of intestate succession will apply to your separate estate but, only after application of the accrual claim. Depending on the growth of the respective estates during marriage, there will either be a claim in favour of or against the deceased estate.
Marriage Out of Community of Property without Accrual
The Intestate Succession Act will apply fully to your estate.
Now that you know how your marriage affects your estate, the rules of intestate succession in terms of the Act can be briefly summarised as follows:
1. Deceased is survived by a spouse / spouses only
The spouse or spouses will inherit your entire estate. In the case of polygamous marriages, the spouses will inherit in equal shares. For example, if you have two wives, each wife will get 50% of your estate.
2. Deceased is survived by descendants only
Descendants are your biological or adopted children and include children born out of wedlock. Your descendants will inherit your entire estate in equal shares.
3. Deceased is survived by a spouse or spouses and descendants
Each spouse will received R250 000.00 or a child’s share – whichever is the greater. A child’s share is calculated by dividing the value of the estate by the number of spouses and children. Once the spouse or spouses have received their share (R250 000.00 or a child’s share), the balance is distributed between the remaining descendants equally.
4. Deceased leaves no spouse or descendants, but both parents are still alive
Your parents will inherit your estate in equal shares.
The Act further makes provision for distribution of your estate in the following instances as well:
- Deceased leaves no spouse or descendants, but leaves one parent while the other deceased parent left descendants (i.e. brothers and sisters of the deceased);
- Deceased leaves no spouse or descendants, but leaves one parent while the other deceased parent left no descendants;
- Deceased leaves no spouse, descendants or parents but both or one of the parents left descendants (i.e. brothers and sisters of the deceased);
- Deceased leaves no spouse, descendants or parents or descendants of his parent’s.
There are many practical difficulties in not leaving a valid will that relate to your wishes not being met, heirs that are minors, business succession and disagreement amongst heirs.
Any person over the age of 16 years old is capable of making a will setting out how his/her estate should be dealt with upon his/her death. By drafting a proper will you can ensure that your wishes are met and your family is taken care of as you wanted.