If the Deceased had no Will – Intestate

 

In the case of someone dying without a will, The Master of the High Court may appoint an executor dative since no-one would have been nominated in a will. The executor’s first duty is to locate the will if there is one.  If a will cannot be found among personal papers, inquiries should be made at the deceased’s lawyers, accountants, bank or insurance company.  It may be in safe keeping with one of 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.

 

If one dies without a will, or if the will is found to be invalid, the estate is to be administered in terms of the Intestate Succession Act, Act 81 of 1987.  These rules only apply if the deceased was domiciled in South Africa at the time of death.  If the deceased was domiciled in another country, the laws of that country will apply, not the rules set out below.  If you are not sure, see notes on domicile in Estates FAQ.

 

About Intestate Succession

 

Intestate succession is based primarily on blood relationship, Illegitimacy shall not affect the capacity of a blood relation to inherit. An adopted child is considered a descendant of his adoptive parents. The following is an outline of how an intestate estate devolves:

 

  • If the deceased is survived by a spouse or spouses, and has no living descendants, the spouse inherits the estate, if 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, each spouse will inherit R250 000 or a child’s share, whichever is greater, (this amount is fixed from time to time by the Minister of Justice). The children will get the balance of the estate, and if a child is deceased and has descendants, that child’s portion will go to their surviving spouse and dependents.

    • 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 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.

 

How To Work Out A Child’s Share

Example 1:  If a child’s share is less than R250 000.00

Value of intestate estate is R550 000.
The deceased is survived by a spouse and 3 children.
A child’s share amounts to R137 500 (R500 000 divided by 4 (3 children plus spouse)).
The child’s share is less than R250 000. Therefore the spouse will inherit R250 000 and each child will inherit R100 000,00. (R500 000 less R250 000 to the spouse, and the remainder is divided by 3).

 

 

Example 2:  If a child’s share is greater than R250 000.00

Value of intestate estate is R1 250 000.
The deceased is survived by a spouse and 3 children.
A child’s share amounts to R312 500 (R1 250 000 divided by 4 (3 children plus spouse)).
The child’s share is greater than R250 000.  Therefore the spouse will inherit R312 500 and each child will also inherit R312 500 (R1 250 000 less R312 500 to spouse, divided by 3).

 

 

Minors

If the deceased dies intestate and a minor inherits, such portion will be held by the Guardian’s Fund at the Master of the High Court until the child reaches majority at 18 years of age.

 

Marriage in Community of Property

Where Intestate Succession applies in a case of marriage in community of property, one half of the estate belongs to the surviving spouse/s and will not devolve according to the rules of intestate succession. Please consult your legal representative for advice.

 

If you are still unsure with regard to the rules of Intestate Succession, read more on The Master of the High Court website.