By: Morné Janse van Rensburg ACMA, CGMA
Making certain that you have a valid Will in place often finds itself at the bottom of the To Do list, especially if you are young, fit and healthy. The truth is, a will is not that arduous to prepare and depending on the extent of the detail, it shouldn’t cost too much either. Dying without a will, on the other hand, can leave your family and loved ones with a mountain to climb.
If someone dies without a will, the Master of the High Court may appoint an executor on the deceased’s behalf to administer the estate. The executor’s first responsibility would be to ensure that the deceased did in fact not have a will. If a will cannot be found among personal papers, inquiries should be made at the deceased’s lawyers, accountants, bank or insurance company to ensure that a copy was never stored with them. If it cannot be traced, even though relatives may be positive that one exists, the estate must be administered as if no will had been drawn up.
Without a valid will, the estate will be administered in terms of the Intestate Succession Act No. 81 of 1987 according to the rules of intestate succession. These rules apply only if the deceased was living in South Africa at the time of his/her passing. If the deceased was domiciled in another country, the laws of that country will apply.
Intestate succession is based principally on blood relationships; however, an adopted child is considered a descendant of his adoptive parents. Should intestate succession apply, the estate would devolve as follows:
- If the deceased is survived by a spouse or spouses, and has no living descendants, the spouse inherits the estate. If the deceased was a husband in a polygamous marriage, the surviving spouses will inherit in equal shares.
- If the deceased is survived by a descendant, but not by a spouse, the descendant shall inherit the estate.
- Where there is a living spouse or spouses and descendant/s, the spouse or spouses inherit the greater of R250 000 per spouse or a child’s share, and the children the balance of the estate. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased and deceased children who have left issue, plus the number of surviving spouses.
- If the deceased leaves no spouse or descendants, but both parents are alive, the parents shall inherit the estate in equal shares.
- If the deceased has no surviving spouse or dependents but has only one surviving parent, the parent inherits half the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent shall inherit the estate.
- If the deceased is not survived by spouse, descendant or parent but is survived by descendants of the deceased mother or father who are related to the deceased through the parents, one half of the estate is divided equally among the mother’s descendants and one half of the estate divided equally among the father’s descendants.
- If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, the other blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.
- Where there are no relatives, and the assets have not been claimed by a legitimate heir after 30 years, the estate is forfeited to the state.
- If the deceased dies intestate and a minor is to inherit assets, these will be held by the Guardian’s Fund at the Master of the High Court until the child is 18 years old.
The Master’s Office is under extreme pressure and the process of winding up a deceased estate can be extremely lengthy with many factors causing delays and drawbacks. Leaving your last wishes in the hands of The State can cause your family and loved ones undue stress. Preparing your Will is undoubtedly one of the most important responsibilities during your lifetime; therefore consulting a professional is well worth the effort in making sure your instructions are clear and uncomplicated.