WHAT HAPPENS IF A PERSON DIES WITHOUT A WILL IN SOUTH AFRICA?

In South Africa, we have what is called the Law of Succession. This law dictates how assets and estates are distributed among family members of a deceased. A person can either die testate, which means they left a will before their death or intestate meaning they left no will at all. Any person over the age of 16 in South Africa is free to make a will to determine what happens to their assets and estate should they die. If a person dies without a will in South Africa their estate and assets are distributed among family members according to the Intestate Succession Act 81 of 1987. The following blog post will explain in detail what happens if a person dies without a will in South Africa.

What happens if a person dies without a will?

Intestate Succession Act 81 of 1987

The Intestate Succession Act 81 of 1987, is the act followed when a person dies without a valid will, meaning the deceased person’s estate will be devolved following the rules as stipulated by the Intestate Succession. The main purpose of Intestate Succession is to distribute the deceased’s assets equitably among his/her heirs, following a firm set of rules and guidelines. This act follows that the deceased’s spouse and children will be considered first when it comes to the devolving of their estate and assets. The act is put in place to avoid any uncertainty or guesswork regarding the distribution of the deceased’s assets amongst his/her heirs.

When married in community of property, half of the estate and assets fall to the hands of the surviving spouse, relegating the rules of Intestate Succession. Below is a detailed guideline of how assets are distributed following the Intestate Succession.

The deceased is survived by a spouse(s), but no descendants

In this case, the remaining spouse inherits everything. In case of customary marriage where a husband takes two wives and he dies, his wives will share the inheritance equally.

The deceased is survived by a descendant(s), but no spouse

The descendant (s) will inherit everything.

The deceased is survived by a spouse(s) and descendant(s)

The spouse will inherit R250 000 or a child’s share, whichever amount is the highest.

This is how the child’s share is calculated in case of a polygamous marriage:

If the estate is worth R2 000 000 and the deceased has two wives and three children. The 2 million is going to be divided by 5, to determine the child’s share. In this case, the child’s share will be R400 000. This means that the wives will get the child’s share which is higher and not R250 000.

If the estate is worth R800 000, with two wives and three children. The R800 000 will be divided by 5 to determine the child’s share. In this case, the child’s share is 160 000, which is less than R250 000. This means that the wives will be getting the R250 000 and not the child’s share. So in this instance, R500 000 will be deducted from the R800 000, for the wives, who will each get R250 000. Meaning R300 000 will be left, which will then be divided amongst the three children. This means the child’s share will be R100 000.

This is how the child’s share is calculated in case of a monogamous marriage:

The same rules still apply. If the estate is worth R2 000 000 and the deceased has a wife and three children, the 2 million will be divided by 4, to determine the child’s share. In this case, the child’s share is R500 000 which is higher than R250 000. This means that the wife will get the child’s share instead.

If the estate is worth R800 000, then it will be divided by 4 to determine the child’s share. In this case, the child’s share is R200 000, which is less than R250 000. This means that the wife will get R250 000 from the R800 000, meaning R550 000 will be left. This R550 000 will be divided amongst the three children, so in this instance, the child’s share will be R183 333.

The deceased leaves no spouse(s) or descendant(s) but has parents who are alive

The parents of the deceased will inherit the estate equally.

The deceased leaves no spouse(s) or descendant(s) but one parent is alive, but the deceased parent left descendants (That is siblings of the deceased)

The parent who is still alive will inherit half of the estate. While the other half is shared amongst the deceased’s siblings.

The deceased leaves no spouse(s) or descendant(s) but one parent is alive but did not leave any descendants (meaning the deceased was an only child)

The parent who is still alive will inherit everything.

The deceased leaves no spouse(s) or descendants(s) or parents, but both parents left descendants

All the remaining descendants of the parents will get equal shares each.

The deceased leaves no spouse(s) or descendant(s) or parents or descendant from parents

The closest blood-related family members will inherit everything.

The deceased is not survived by any relative

The state will set a temporary time frame, for a relative or family member to come claim the inheritance. If that time passes and no one claims the estate then it devolves to the state.

Afrikaans Translation

No matter where a deceased person lived or owned property during their lifetime, a number of practical difficulties may arise when their estate has connections to multiple foreign or multijurisdictional jurisdictions. One such difficulty is dealing with language and translation barriers, which may require getting official translations of any documents, such as your last will and testament.

Afrikaans Translation is a well-known and professional provider of certified translations and will translate your will and other legal documents. You will need a certified translation if the deceased made their will abroad and you are compelled to produce it for legal reasons in that language. We can provide accurate translations accompanied by an accuracy certificate and the details requested by official authorities. Please contact us for more information about our translation services.