Dying Without a Will

What happens if you die without a will?

In South Africa there is an Act, namely the Intestate Succession Act 81 of 1987 which regulates how the estate of a person who dies without a will is dealt with.

Your marital regime also makes a difference as to how your estate will devolve upon your death.

If you are married out of community of property, your assets and liabilities are your own. However if you are married in community of property you have a joint estate with your surviving spouse, and you share all your assets and liabilities.

When you are married in community of property, your surviving spouse, by operation of law, receives an undivided half share of the joint estate before your estate is divided amongst your heirs, either in terms of your will, or in terms of the laws of intestate succession where you have died without a will.

Where the deceased was married, the surviving spouse is entitled to R125,000.00 or a child’s share, whichever is the greater.

So for example, if you die without a will and you are married out of community of property with 2 children and an estate worth R900,000.00 your estate will devolve as follows:-

- your spouse will receive R300,000.00 (as this is a child’s share and is greater that R125,000.00)

- each of your children will receive R300,00.00

If on the same facts you die without a will, but you are married in community of property your estate will devolve as follows:-

- your spouse will receive an undivided half share of the estate by virtue of your spouse’s marriage in community of property to you, namely R450,000.00

- the remaining R450,000.00 will devolve as follows:-

· your spouse will receive R150,000.00 (as this is a child’s share and is greater than R125,000)

· each of your children will receive R150,000.00

If you are married according to African customary laws and you have more than one spouse, each spouse is entitled to a R125,000.00 or a child’ share of your estate, whichever is the greater, upon your death.

As can be seen from the above examples, dying without a will means that the law dictates how your estate must devolve.

Whilst there are certain basic principles which apply even if you have a will, you can ensure that your intentions are made clear in your will as to how you require your estate to devolve upon your death.

When you die without a will you also lose the opportunity of appointing an executor, (an executor is the person who administers your estate), a trustee (if a testamentary trust is created in terms of your will), and a guardian for your children.

Should you require any further advice, alternatively should you require a will to be drawn up, contact Margaret McCullough on 033-8459700 for assistance.

  • Added 13 December 2010

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