If a person dies and leaves an estate (assets and liabilities) which cannot be divided in terms of a Will, the Intestate Succession Act, 81 of 1987 comes into force and the division of the estate takes place in terms of the provisions of the Act.

The perception exists that the Intestate Succession Act only applies to estates for which there is no valid Will – being either with no will at all, or with an invalid will. However, the Act states that it also applies when a person dies partially intestate. This means that the Act applies to assets that are not covered by the provisions of a Will, where there is indeed a valid Will, but the Will does not dispose of all the assets. An example of this is where a Will only contains provisions about specific assets but makes no mention of the residue (remainder) in the estate. Sometimes provisions in a Will are unclear, or unenforceable, or invalid and those assets will also be divided in terms of the Intestate Succession Act. A person’s estate can therefore be distributed wholly intestate, or only partially so.

The rules of the Intestate Succession Act only apply if the deceased was domiciled in South Africa at the time of death. If the country of domicile was not South Africa at the time of death, the laws of the country of death will apply.

Who will be the executor in the estate if there is no will?

The appointment of an Executor is usually made in the deceased’s Will, but if there is no Will the intestate heirs of the deceased estate may nominate a person to be appointed as the Executor. However, the final decision of appointment lies with the Master of the High Court.

Who will inherit your estate if you die Intestate?

The Intestate Succession Act determines who your intestate heirs are, and depends on which relatives are alive at the date of your death.

Various possibilities of intestate heirs

The Intestate Succession Act provides that the closest relatives will inherit from the deceased in a predetermined order and in prescribed proportions. It also provides that deceased spouses, adopted and children born out of wedlock can also inherit intestate. A person who died before the testator cannot be an intestate heir but an unborn descendant (who has already been conceived before the death of the testator) can indeed inherit if he/she is eventually born alive.

The spouse as the sole heir

The spouse will inherit the entire estate, where they are able to meet the definition of “spouse” to qualify for an inheritance.  A spouse is any party to a valid marriage in terms of the Marriage Act, 25 of 1961 (a civil marriage) or a customary marriage in terms of Section 2 of the Recognition of Customary Marriages Act 120 of 1998.

The Intestate Succession Act also recognizes polygamous marriages, where the deceased had more than one spouse, and provides in such cases that the deceased’s estate is divided equally between the spouses.

If the deceased was married in community of property, one-half of their estate automatically belongs to his/her spouse and the rules of Intestate Succession will not apply to this portion of the estate. It therefore means that the surviving spouse inherits 50% of the estate and the remainder will be distributed according to the rules of the Intestate Succession Act.

Where there are children but no spouse

The children will inherit the deceased’s estate in equal portions. 

If any of the deceased’s children have predeceased the deceased, their children (the deceased’s grandchildren) then stand to inherit their deceased parents’ share.

Where there is a spouse and children

If the deceased is survived by both a spouse and children, the assets are divided in a specific ratio between the spouse and the children.

The spouse will inherit either what is called a child’s share, or a predetermined amount set by the Minister of Justice (the amount is currently R250 000.00) – whichever amount is greater.

The child’s share is calculated by dividing the estate by the number of remaining children (including deceased’s children’s descendants) as well as the spouse (or spouses in case of customary marriages)

The spouse will inherit the greater of either R250 000.00 or the child’s share, and the children will inherit equally from the remainder.

The law does not distinguish between children born in or out of wedlock.  Children born out of wedlock have the same right of inheritance as that of the deceased’s legitimate children.

In terms of the Law, an adopted child will be able to inherit from his adoptive parents and their blood relatives, but not from his natural parents and their blood relatives, except if one of his natural parents at the time of the adoption were married to the adoptive parent.

Deceased’s parents as heirs

If the deceased is not survived by a spouse, nor any children, but is survived by both his/her parents then both the parents will inherit the intestate estate, in equal shares.  They are referred to as ascendants.

If only one of the parents are alive, the living parent will inherit half of the intestate estate and any descendants of the pre-deceased parent will inherit the other half of the estate, in equal shares. 

If the pre-deceased parent has no living descendants, then the living parent of the deceased will inherit the entire intestate estate.

Descendants of deceased parents as heirs (the deceased’s siblings)

If the deceased is not survived by a spouse, children or parents, but is survived by siblings, then the intestate estate shall be divided into two equal shares and the descendants related to the deceased through the deceased’s mother will inherit half of the estate, and the descendants related to the deceased through the deceased’s father will inherit the other half of the estate

Blood relatives as heirs

If the deceased is not survived by a spouse, children, parents, or siblings, then the deceased’s blood relatives who are related to the deceased in the nearest degree will inherit the deceased’s estate in equal shares.

If the deceased is not survived by any blood relatives

If the deceased has no surviving descendants, ascendants or any blood relatives, the Executor is bound by the provisions of Section 35(13) of the Estates Act, 66 of 1965. The amount that cannot be paid to heirs is deposited with the Master of the High Court into the Guardian’s Fund. If no legitimate heir makes a claim against the deceased’s estate after 30 years, then the Intestate Estate of the deceased will be forfeited to the State.

Renunciation and disqualification as an heir

If a descendant of the deceased who, together with the surviving spouse of the deceased, was entitled to inherit from the Intestate Estate renounces his/her inheritance, then such inheritance shall vest in the surviving spouse.

If an heir is disqualified from benefiting from the Intestate Estate for any reason, or renounces his/her right to be an heir of the Intestate Estate of the deceased, then any benefit he/she would have received (if he/she had not been disqualified or renounced) shall devolve as if he/she had predeceased the deceased.

Intestate Succession and minor children

Any assets inherited intestate by a minor child will be administered by the Guardian’s Fund, which is run by the Master of the High Court.  The Guardian’s Fund will decide how these assets will be dealt with and can lead to delays and complications for the minor child involved, leaving them vulnerable.

It is important to understand the Intestate Succession Act, as it determines how an estate is administered if there is no valid Will.  It is therefore also strongly recommended that you have a Will drafted by a professional person to ensure that your Will meets all the requirements provided for in the Wills Act, 7 of 1953.