By: Hannah Myburgh
Dying without a valid Will can have significant estate planning consequences, leading to outcomes that the deceased may not have intended or anticipated. In the absence of a Will, your estate will be distributed according to a fixed order, which could result in unintended beneficiaries. Beyond these unexpected consequences, intestacy can affect nearly every aspect of estate planning. If you haven’t yet taken the time to draft a valid Will, it’s crucial to consider the following points to ensure your wishes are respected and your estate is managed efficiently.
Guardianship: When a parent passes away, the surviving parent becomes the legal guardian of any minor children. However, if a person dies intestate with no surviving parent, the State will appoint a guardian, which may not align with the deceased’s wishes. A valid Will allows a testator to nominate a guardian and an alternate, ensuring the most suitable person or people are entrusted with the care of the minor children.
Executorship: If you die without a Will, the State will appoint an executor to administer your estate, which could be a stranger with no knowledge of your family dynamics or personal circumstances. While intestate heirs can suggest an executor, the Master of the High Court must confirm the appointment. Additionally, a testator can negotiate lower executor’s fees when drafting a Will, but without a Will, these fees cannot be negotiated, potentially resulting in higher costs.
Intestate succession laws: The laws of intestate succession can be broadly summarised as follows:
Spouse, no dependants: If the deceased leaves behind a surviving spouse and no dependants, the spouse inherits the entire estate. This includes spouses in same-sex civil unions, religious marriages, and polygamous marriages under customary law. Previously, cohabiting couples were excluded from inheritance under intestate succession laws. However, in the 2020 case of Mwanya vs the Master of the High Court, the court ruled that the law was outdated, recognising the inheritance rights of cohabitants in long-term relationships. This decision is yet to be confirmed by the Constitutional Court, which could set a legal precedent for such cases.
Dependants, no spouse: Where the deceased leaves behind only children, those children will inherit the deceased estate in equal shares.
Spouse and dependants: If the deceased leaves a spouse (or spouses, in the case of polygamous marriages) and children, the estate is divided by first calculating a child’s share. This is done by adding the estate’s value and dividing it by the total number of spouses and children. The surviving spouse(s) will receive either a child’s share or R250,000, whichever is greater. The remaining estate is then equally distributed among the children.
Parents only: Where the deceased has only surviving parents, the parents will inherit the entire estate.
Siblings only: If the only surviving heirs are the deceased’s siblings, they will inherit the deceased estate in equal shares.
Per stirpes: It is important to remember that the principle of per stirpes applies in the case of intestate succession. For instance, where the deceased leaves children but no spouse, the children will inherit the estate in equal shares. Where one child has died before the deceased and left behind children of his own, those children will inherit from the deceased per stirpes through representation.
The absence of heirs: Where a person dies leaving no heirs, the assets in the estate will be forfeited to the State and placed in the Guardian’s Fund for safe-keeping for a period of 30 years. If no heirs come forward during this period, the money will become the property of the State.
* Myburgh is a financial planner at Crue Invest (Pty) Ltd.
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