What happens if there is no will?
When someone passes away without leaving a will, it’s termed as dying “intestate”. In South Africa, intestate succession is governed by the Intestate Succession Act, 81 of 1987, which lays out specific rules for the distribution of the estate in such cases. This act ensures that the estate of the deceased is distributed to their closest relatives in a systematic and fair manner, providing a legal framework that dictates how assets should be allocated in the absence of explicit wishes from the deceased.
The Intestate Succession Act lays out specific rules for the distribution of estates, which can be summarized as follows:
- Surviving Spouse without any Children – If the deceased is survived by a spouse but no descendants, the spouse inherits the entire estate.
- Children but no spouse – If there are children but no surviving spouse, the children inherit the estate in equal parts.
- Spouse and Children – If the deceased leaves behind a spouse and children, the estate is divided between them. The spouse inherits the first R 250 000,00 of the deceased’s estate, whereafter the children inherit the remainder in equal shares up to an amount of R 250 000,00. The R 250 000,00 amount is referred as a “child’s share”. For example,
- The deceased has an estate of R 600 000,00 and has a surviving spouse and two children. The surviving spouse would inherit the first R 250 000,00 of his estate, whilst the balance of R 350 000,00 would be shared equally between the children giving them each an amount of R 175 000,00.
- If the deceased left an estate of R 900 000,00 the total estate divided by the number of heirs would exceed a child’s share. In such a situation the surviving spouse and children would each inherit an amount of R 300 000,00.
- No Spouse or Children – If the deceased has no spouse or children, the estate passes to the deceased’s parents. If the parents are deceased, the estate is distributed to the deceased’s siblings, and if there are no siblings, further relatives are considered in a specific order of succession as outlined in the act.
- Adopted Children – The act recognizes adopted children as legal heirs of the adoptive parents in the same way as biological children.
In terms of Section 1(6) of the Intestate Succession Act, where a spouse and children inherit, the said children may renounce the benefit they stand to inherit in favour of the surviving spouse. This only applies to adult children without any mental disabilities.