Intestate Succession | What does it mean to die intestate?

• South Africa

• Other

10-09-2020

If a person dies intestate it means that he or she has either not left a will or has left a will which is invalid. A will is invalid if it does not comply with the requirements set out in the Wills Act No. 7 of 1953 (“the Wills Act”). Section 2(1)(a) of this Act states that for a will to be valid, the following is required:

1. The will must be signed at the end by the testator (the person who is making the will) or by another person on the testator’s behalf in the testator’s presence and in terms of a direction given by the testator;

2. The signature, as set out above, must be made in the presence of two or more competent witnesses who are all present at the same time. A competent witness is anyone over the age of 14 who is of sound mind and can understand the consequences of his or her actions;

3. The witnesses must sign the will in the presence of the testator or the person signing on his or her behalf and in the presence of each other;

4. If the will has more than one page, every page must be signed by the testator or the person signing on his or her behalf and the witnesses;

5. If the will is signed by the testator by the making of a mark (for example, by using a fingerprint) or by someone else on his or her behalf, a magistrate, justice of the peace, commissioner of oaths or notary public must certify at the end of the will that the testator is known to him or her and that the will is that of the testator. If the will has more than one page, it must be certified as such on every page.

Who will inherit your estate if you die intestate?

If you die intestate the Intestate Succession Act No. 81 of 1987 will apply (“the Intestate Succession Act”). The Intestate Succession Act determines who will inherit your estate. There are various possibilities based on which relatives are alive after you have died:

1. You are survived by a spouse, but no children:

Your spouse will inherit your entire estate.

2. You are survived by one or more children, but no spouse:

Your child will inherit your entire estate. If you have more than one child, your estate will be split equally between them.

3. You are survived by one or more children and a spouse:

Your spouse will inherit either a child’s share or R250 000.00, whichever is the greater amount (this is the amount currently prescribed by the Minister of Justice, but it may change in the future). Your child or children will then inherit the rest of your estate equally. A child’s share is calculated by dividing the value of your estate by the number of your surviving children or deceased children who have left their own children, plus the number of your surviving spouse/s.

4. You are not survived by a spouse or children but are survived by one or both of your parents:

If both of your parents are alive, your estate will be split equally between them.

If only one of your parents is alive, he or she will inherit half of your estate and any children of your deceased parent will inherit the other half in equal shares. If your deceased parent has no children, your surviving parent will inherit your entire estate.

5. You are not survived by a spouse, children or parents:

If you are survived by half-siblings from both your mother’s side and your father’s side, the half-siblings from your mother’s side will inherit half of your estate in equal shares. The half-siblings from your father’s side will then inherit the other half of your estate in equal shares. If you are only survived by half-siblings from one side of the family, those half-siblings will inherit your entire estate in equal shares.

6. You are not survived by a spouse, children, parents or half-siblings:

Your blood relatives who are related to you in the nearest degree will inherit your entire estate in equal shares.

7. You are not survived by any blood relatives:

Your estate will be forfeited to the State.

Conclusion

It is important to note that it is not sufficient to merely write up a will, you also need to ensure that your will complies with all the validity requirements provided for in the Wills Act. Should you fail to do so, the provisions of the Intestate Succession Act will apply and any wishes that you may have had with regards to the distribution of your estate will not be carried out.

Should you have any questions or, for your peace of mind, wish to have your will drafted by an experienced professional, please do not hesitate to contact us.

Co-authored by: Caitlin Petzer, Candidate Attorney.