What happens to your Estate when you die without leaving a will?
If you die without leaving a will or leave an invalid will, your Estate will fall within the definition of an intestate estate and the Intestate Succession Act (Act 81 of 1987) will make provision for how your Estate will be devolved. In simple terms, the Act will determine who inherits your assets.
What happens If you have a will but it is declared invalid?
Our Courts are often faced with instances where there is a will, but it does not comply with the legal requirements of the Act and therefore may be declared invalid. In this case, your estate will devolve upon your heirs under the Intestate Succession Act.
Another instance is where a person dies partly intestate (with no will) and partly testate (with a will). This happens when there is a will but portions of it are invalid, or the Testator / Testatrix fails to make provision for all the assets in the will. In this case, the assets that are bequeathed in the will are devolved Testate while all other assets will devolve in terms of Intestate Succession.
Who will inherit from your Estate if there is no Will?
There are certain rules, encapsulated in the Act, which determines who will inherit what and in what order in terms of Intestate Succession.
Below we have highlighted 4 of the more commonly used rules. Please note that more rules exist as a guideline for various, more complex, situations. For assistance with your unique matter, contact us at Macdecorney Attorneys Inc.
The rules given below act as a guideline only.
Rule One:
If you are survived by your spouse/spouses but not by any child/children?
Your spouse/spouses will inherit everything from your estate.
Who is a spouse according to the Intestate Succession Act?
- Any person married under the Marriages Act.
- Any person who is married under customary law which is recognised under Section 2 of the Recognition of Customary Marriages Act 120 of 1998 (this includes those who were married under customary law before the Act came into operation)
- Any person married according to Hindu or Muslim religious rites.
Rule Two:
If you are survived by your child/children, but not by a spouse.
The child/children will inherit the Intestate Estate in equal shares. Should any predeceased child/ children have descendants of their own, then the descendants of the predeceased will inherit in equal shares.
Who is a child according to the Intestate Succession Act?
- A child born out of wedlock (who can inherit from both blood relations), the same as a child in wedlock.
- An adopted child.
Rule Three:
If you are survived by a spouse or spouses, as well as your child/children.
The spouse or spouses inherit R250,000 per spouse or a child’s share (whichever is greater), and the children inherit the balance of the estate in equal shares.
A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left children, plus the number of surviving spouses.
Example of the child’s share in the event of a polygamous marriage:
In this case, the value of the intestate estate is R2 000 000. The deceased is survived by two spouses and three children. A child’s share amounts to R400 000 (being R2 000 000 divided by five: the three children and the two spouses). The child’s share is greater than R250,000. Therefore, each spouse will inherit R400 000 and each child will inherit R400 000 (R2 000 000 less R800 000 to the spouses, divided by three).
Example of the child’s share in the event of a monogamous marriage:
In this case, the same calculation will apply as in the previous example, only the child’s share is calculated by dividing the value of the intestate estate by four. The surviving spouse and each child will each inherit R500 000.
Rule Four:
If you are survived by no children and spouses, but both parents are alive. Both parents will inherit the intestate estate in equal shares. It is clear that, if your estate is devolved in terms of Intestate Succession, who inherits what, and in which portion is dependent on certain rules, and may not align with your wishes.
Furthermore, by not having a valid will, heirs who you may not have intended to inherit may inherit and those who you intended to inherit may not inherit. For assistance in drafting a will, ensuring your existing will’s validity, or winding up a family members estate, contact us at Macdecorney Attorneys Inc.
