A FAMILY MEMBER DIED WITHOUT A WILL

When you die without a will, the Intestate Succession Act and Administration of Deceased Estates Act determine the process which must be followed to wind-up your estate.

Appointment of Executor

The first step would be to have an Executor appointed to attend to the administration. Seeing as there is no will, an executor must be nominated by all the heirs of the deceased. This could be a problem when the heirs are overseas and must appoint a person who is not a child, parent or spouse of the deceased. Section 23(1) of the Administration of Deceased Estates Act provides that every person who is not the spouse, child or parent of the deceased or has not been nominated by a will to be an executor, must find security to the satisfaction of the Master of the High Court in an amount determined by the Master for the proper performance of his functions.

Distribution of Estate Assets

Should you be married in community of property and you die without a will, only half of the estate assets are dealt with. This means that 50% of a fixed property, for instance, will be awarded to the heirs of the deceased in accordance with the Intestate Succession Act – please see below.

Many couples today are married in terms of the accrual regime. When you die, calculations must be done to determine whether the surviving spouse or the estate has a claim against the other to equalise the growth of the estates. This could mean that your estate might have a substantial claim against your spouse’s estate or vice versa. These claims can result in the sale of assets which might not have been your intentions. In many cases these claims are particularly enforced when it is the deceased’s second marriage and there are children from his first marriage.

In the case of minors, the Act states that minors may not inherit until they reach the age of 18 years. To protect their inheritance, the funds must be paid to the Guardian’s Fund. Most estates do not have the liquidity to pay these inheritances and this results in the sale of assets.

Summary of the Intestate Succession Act

Should you die without a will, your estate will be distributed as follow:

1. If there was only a spouse, the spouse will inherit the entire estate. If there is more than one spouse, the estate will be divided in equal shares.
2. If there was no spouse and only children, the children will inherit in equal shares. A legally adopted child will also inherit a child’s share.
3. Where there is a surviving spouse(s) and children, each spouse will inherit R250,000 or a child’s share (whichever is the greatest). The balance will be divided in equal shares between the spouses.
4. In the case where there are no spouses or children, the deceased’s living parents will inherit in equal shares.
5. If the deceased has no surviving spouse or children and only one surviving parent, the surviving parent will inherit half of the estate and the other half will be divided amongst the descendants of the deceased parent. Should there be no descendants of the deceased parent, the surviving parent will inherit the entire estate.
6. Should there not be a spouse, children or parents, half of the estate will be inherited by the descendants of the mother and the other half by the descendants of the father of the deceased.
7. If there is no spouse, no children, no parents or descendants of parents, the other blood relatives of the deceased who are nearest in degree to the exclusion of those more remote, will inherit the estate in equal shares (per capita).
8. In the very rare case that no living relatives can be located, the entire estate must be converted to cash and paid to the Guardian’s Fund and if these proceeds are not claimed within 30 years, the estate is forfeited to the State.

In conclusion, by drafting a will, many problems and family disputes can be avoided. The will nominates an Executor who will be capable to administer the estate or appoint someone who can assist him and the requirement for security will be waived. Heirs will be appointed and provisions can be made for minor children in the form of a testamentary trust. The estate will be distributed as per the deceased’s final wishes.

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)