What happens if you die without leaving a will viz without legally acceptable directions as to who your estate should go to? In this situation, you will be regarded as having died intestate.
Fortunately, the law provides a formula as to how your estate should devolve in these circumstances. This is contained in the Intestate Succession Act, of 1967.
The order of succession is set out in the Act as follows :
- If you leave a husband or a wife (spouse) but no children, your spouse will inherit your entire estate.
- If you leave children but no spouse, your children will share their entire estate.
- If you leave a spouse and children, your spouse would inherit the greater of a child’s share in your estate or R 250 000.
A child’s share is determined by dividing the number of children plus one into the gross value of the estate. If there were 5 children and the estate is worth R 500 000, you would divide R 500 000 by 6 (5 children plus spouse) =R 83 333. As R 83 333 is less than R 250 000, your spouse will inherit R 250 000 and the children the balance, also amounting to R 250 000 to total R 500 000.
- If you died not leaving a spouse or children, and both of your parents were still alive, they would inherit your estate in equal shares.
- If you died with one of your parents still alive, that parent would inherit 50% of your estate. The other 50% would go to the children of the deceased parent(brothers and sisters). If the deceased parent had no children, that 50% would also go to the surviving parent.
- If you had no spouse, children, or parents that were still alive, 50% would go to the descendants of that parent related to you through your father or mother as the case may be (brothers and sisters). The other 50% would be dealt with similarly.
- If only one predeceased parent left children as per 5 above, those children would inherit the entire estate.
- If you did not leave a spouse, children, or parents and there were no descendants of those parents, your nearest blood relative/s would inherit the entire estate.
- If you did not leave relatives of any kind, your estate would be forfeited to the State!
What about illegitimate and adopted children?
For the purposes of the Act, illegitimate children are treated the same as legitimate children.
An adopted child is treated as the descendant of the adoptive parent, not the natural parent. He may be regarded as the descendant of the natural parent only if the natural parent is also the adoptive parent or if the natural parent is married to the adoptive parent.
It will be clear from the above that if the Act was applicable and there is bad blood in the family, the situation could become very awkward.
Ensuring you have a will should therefore be a top priority!