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Intestate succession – What happens if I die without a will?

Intestate succession


Intestate succession – What happens if I die without a will?

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Death has a deep emotional impact on us all – particularly on the loved ones that are left behind. The matter becomes even more complicated if you die without a will.

When this happens, your Estate is dealt with according to the “Intestate Succession Laws” of your country. Your Estate refers to all the money, property and assets you leave behind, minus everything you owe. You will essentially have no control over how your Estate will get distributed.

In South Africa, the Intestate Succession Act specifies that your assets are distributed as follows:

1. If you are married and have no descendants

Your Estate will be paid to your surviving spouse.

(By descendants, I mean your children, grandchildren or great-grandchildren.)

2. If you are married and have descendants

  • Your surviving spouse will inherit a child’s share or R250 000, whichever amount is higher.
  • The remainder of your Estate will be split equally between your descendants.

The best way to understand this is by looking at an example. Say, you have an Estate worth R450 000 and you have a spouse and two children.

A child’s share is equal to R450 000 (Total Estate)÷ 3(Spouse + two children)= R150 000.

We then check if the share is greater or less than R250 000

In this example, R250 000 is higher than R150 000. This means that the spouse must receive R250 000, which leaves a balance of R200,000 for the children.

The R200 000 is split equally between the children. That is R200 000 ÷ 2 = R100 000 each.

3. If you have no surviving spouse or descendants

Your Estate will pay out to your parents in equal shares -if they are still alive.

4. If only one parent is alive

  • Your parent will get half of your Estate.
  • The other half will be split between the descendants of the deceased parent. Your parent’s descendants are basically your brothers, sisters and their children. Please note that this also includes siblings (or half siblings) that you may not be aware of, as well as their children.
  • If there are no descendants of the deceased parent, the surviving parent will inherit the entire Estate.

5. If there are no parents alive but you have brothers or sisters – or their descendants alive

Half of your Estate will go to the descendants of the deceased mother. The other half will go to the descendants of the other deceased father.

In most cases, the descendants of your parents will be the same, so they would benefit from both splits. But keep in mind that, this will also include descendants of your parents that you may not know about.

6. If there is none of the above mentioned people

Your Estate will be split equally amongst your closest blood relations.

7. If there is absolutely no one that can inherit from your estate as mentioned above

Your Estate will be forfeited to the Government after 30 years.

As you can see, Intestate succession – as it is called – can become very complicated. In fact, you may even end up distributing your Estate to people who you would rather not. This is why it is vitally important that you complete a will in respect of all your assets. This way you can make it crystal clear who should benefit from your Estate.

Please consult a lawyer or a suitably qualified expert in estate planning to assist in the drafting of your will.

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Shameer Chothia

Shameer is currently a legal adviser at Momentum, the Chairman of the Stone Terrace Home Owners Association, and the Rhine Stone Body Corporate. He is passionate about client education and financial literacy as he strongly believes in the pivotal role it plays in people's lives. Shameer is also an avid soccer fanatic. All views expressed are Shameer’s own views and neither reflect nor are influenced by the views of Momentum.

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