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Understanding Intestate Succession in South Africa

Understanding Intestate Succession in South Africa

by Treveno Hendricks

Raubenheimers Inc.

Understanding Intestate Succession in South Africa: What Happens If There Is No Will?

When a person passes away in South Africa without a will, intestate succession takes place and determines the distribution of a deceased person’s estate among heirs. In cases where an individual has not left a will, intestate succession attempts to ensure that assets are distributed fairly in accordance with the state’s view of family dynamics and society values.

Legal framework

The legislation controlling intestate succession in South Africa is the Intestate Succession Act 81 of 1987. This Act determines the beneficiary hierarchy where there is no will and the estate is divided according to this legal framework.

The Order of Succession

Typically, the first group of the deceased’s beneficiaries is the spouse and the children. If the deceased is survived by a spouse, but not by children, the spouse shall inherit the intestate estate. If the deceased is survived by children but not by a spouse, the children shall inherit the intestate estate. If the deceased is survived by a spouse and children, the spouse shall inherit a child’s share of the intestate estate or (currently) an amount  R250 000 whichever is greater. The children shall inherit the residue of the intestate estate. This reflects the value that South African society places on immediate families.

The order of succession becomes more complex when there is no surviving spouses or children. In these cases, if the deceased is survived by both parents, the parents of the deceased shall inherit the intestate estate in equal shares. If the deceased is survived by one parent, the surviving parent shall inherit one half of the intestate estate and the descendants of the deceased parent the other half. If there are no descendants of the deceased parent, the surviving parent shall inherit the entire estate.

If the deceased left no beneficiaries whatsoever in terms of the Act, the state will hold the inheritance for a period of 30 years, whereafter the inheritance will be forfeited to the state.

Challenges of Intestate Succession

The intestate framework does not account for the particulars of modern relationships and gives priority to spouses, children and siblings. Uncertainty surrounding the rights of unmarried partners, for instance, can lead to disputes amongst prospective heirs. As societal dynamics change, the restrictions of intestate succession highlight the importance of personalized estate planning.

The Case for Drafting a Will

A will, also known as a testament, is a legal document that specifies how an individual wants their estate to be distributed after death. Additionally, a person can nominate one or more executors i.e. the people who will manage the administration of the estate after their passing. A will is best drafted by a professional, such as a lawyer, trust company, etc. A will should be drafted by anyone who is concerned about how his/her estate will be distributed after death. People can ensure that their assets are distributed in line with their values rather than a predetermined legal formula by making clear their wishes through a will.

With the assistance of legal experts, people can easily navigate the process and take care of any specific estate-related concerns they may have. In addition to offering peace of mind, creating estate plans can provide one a feeling of control over one’s legacy.

Conclusion: Taking Action

Speak with an experienced estate planning attorney if you wish to write a will or are thinking about the consequences of intestate succession. To make sure your wishes are met and to safeguard your legacy, start the conversation as soon as possible.

Should you require more information please contact Charne Boshoff at charneb@raubenheimers.co.za or via the relevant contact details on our Website.

Written by: Treveno Hendricks (Candidate Attorney)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).

Disclaimer

All articles are general information sheets and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E & OE).