Dangers of Not Having a Will

What happens if a person dies without a Will?

  • If a person (“deceased”) dies without a Will, his/her deceased estate (the assets s/he owned at time of death) will be distributed in terms of the Intestate Succession Act (“Act”). This is also known as the rules of intestate succession.
  • Due to there being no Will setting out the deceased’s wishes, the Act sets out certain rules in respect of how the deceased estate must be distributed to his/her heirs (persons who will receive the deceased’s assets).
  • The Act aims to distribute the deceased estate to close relatives first (in a specific order), for example:
    • If the deceased is survived by only a spouse, the spouse will inherit his/her entire deceased estate. The term “spouse” also includes a same-sex civil union in terms of the Civil Union Act, a spouse in a religious marriage and polygamous spouses in terms of customary marriages. A spouse does not include a partner in a cohabitation relationship.
    • If the deceased did not have a spouse and is only survived by his/her children, then his/her children will inherit the deceased estate in equal shares.
    • If the deceased is survived by a spouse and children, then the spouse will receive a child’s share or R 250 000, whichever is the greater amount, and the children will receive equal shares of the balance of the deceased estate.
    • If the deceased did not have a spouse or children, his/her parents, aunts/uncles and/or siblings will inherit from his/her deceased estate.
    • If the deceased did not have a spouse, children, parents, aunts/uncles and siblings, his/her relatives most closely related to him/her will inherit in equal shares.
  • In light of the above, the deceased does not have any control of who will inherit from his/her deceased estate if s/he dies without a Will. This might lead to instances where someone may inherit even if the deceased may have never wanted that persons to benefit from his/her deceased estate.

What if the deceased had no relatives?

  • If the deceased died without a Will and had no-one who could inherit from his/her deceased estate in terms of the Act, the deceased estate will be forfeited to the State.
  • This means that the money in the deceased estate will be placed in the Guardians’ Fund. If no heirs come forward to claim the money within 30 years, the money is forfeited to the State.

Who will be the executor if the deceased did not leave a Will?

  • An executor is the person responsible for carrying out all the duties involved with the administration the deceased estate.
  • The appointment of the executor is usually made in the deceased’s Will and is generally someone the deceased trusted to attend to the administration of his/her deceased estate.
  • If the deceased did not leave a Will, s/he would have not had the opportunity to appoint an executor. The intestate heirs of the deceased’s estate may nominate a person to be appointed as the executor, however, the final decision of who should be the executor still lies with the Master of the High Court.
  • This means that although the deceased may have had someone in mind who s/he would have preferred to be his/her executor, it would not always be that person.
  • This may lead to a delay in the procedure, additional costs and frustration for the deceased’s family.

What happens to the children of the deceased?

  • If a parent dies, the other parent will be the legal guardian of the children. However, it might happen that both parents of the child is deceased.
  • A Will may nominate someone as the legal guardian of the deceased’s minor children if there is no other legal guardian left. However, it does not always mean that the nominated person will be appointed as the legal guardian, but such person will be taken into account when the final decision is made as to who should be appointed as the legal guardian.
  • If a deceased did not have a Will, his/her wishes would not be taken into account and the children might be placed in the care of someone they are not familiar with or someone who the deceased did not trust. It should be noted that the best interests of the children will always be of utmost importance when a decision regarding guardianship must be made.
  • A deceased might have wanted to place his/her children’s inheritances in a trust to be dealt with in a specific matter, for example, to only be paid out when a child reaches the age of 25 years (this can be provided for in a Will). However, without a Will the inheritance will be paid out in terms of the Act if the child is 18 years or older.
  • If the child is still a minor, the inheritance will be kept by the Guardian’s Fund. The Guardian’s Fund is established to protect and manage money on behalf of certain persons, such as minor children.

Do you have any more questions?

What is meant with the administration of a deceased estate?

  • A deceased estate is all the property (such as a house, motor vehicle and money) and debts (such as a home- or motor vehicle loan) that a person had at the time of his/her death.
  • The administration of a deceased estate is the procedure that an executor must follow after the death of a person and involves the:
    • reporting of the deceased estate;
    • collecting the property of the deceased estate;
    • paying the debts due by the deceased estate; and
    • distributing the remaining property to the heirs.

What is a child’s share?

  • A child’s share is best explained in an example, such as where a deceased was in a polygamous customary marriage with more than one wife.
  • A child’s share is calculated by dividing the value of the deceased estate by the total number of spouses and children.
  • If the deceased was survived by children and spouses, each spouse will inherit R 250 000 or a child’s share, whichever is the greater amount.
  • For example, if the deceased had one spouse and two children (three intestate heirs) and his/her deceased estate is worth R 600 000, a child’s share would be R 200 000 (that is R 600 000 divided by three). This means that the spouse will inherit R 250 000 (as this is greater than a child’s share) and the children will receive the balance in equal shares of R 175 000 each.

What if the deceased was in a long-term relationship with someone?

Cohabitation is when an unmarried couple lives together in a long-term relationship that resembles a marriage. This type of relationship does not receive the same protection as a marriage. This means that if a partner in a cohabitation relationship dies without leaving a Will, his/her surviving partner will not be recognised as a spouse and will not be able to inherit from the deceased’s estate under intestate law.

What if the deceased had a Will, but failed to update it?

  • Having an outdated Will is almost just as dangerous as not having a Will at all. If a person fails to update his/her Will, people with whom s/he no longer have relationships with may inherit from his/her deceased estate.
  • Imagine this scenario: while married, the deceased, Paul, had a Will that said his wife, Jane, must inherit his entire deceased estate when he dies. Paul and Jane got divorced and Paul later on married Joanne. Paul wants Joanne to inherit his entire deceased estate after his death, but he never updated his Will accordingly. Paul died 3 years after his divorce with Jane, this means that Jane will still inherit his entire deceased estate.
  • A divorce does not invalidate a Will or part of a Will where an ex-spouse is mentioned.
  • However, the law provides that if the testator (the person whose Will it is) dies within three months after the divorce, it will be assumed that his/her ex-spouse died before him/her. This means that his/her ex-spouse will not inherit if s/he was mentioned in the Will.
  • If the testator dies three months after the divorce without changing his/her Will, it will be assumed that the testator wanted to include his/her ex-spouse in the Will. This means that his/her ex-spouse will inherit in terms of the Will.

The article first appeared on LegalWise