As mentioned in our previous article “How to draft a Will and what you should know?”, a Will is a specialized document that must be meticulously drafted in accordance with the Wills Act, No. 7 of 1953, so as to determine how your estate must be distributed upon your death. To this end, should you neglect to draft a valid Will, then your estate may, against your wishes, devolve to your nearest blood relations in terms of the Intestate Succession Act, No. 81 of 1987 (hereinafter referred to as “the Act”).
However, what exactly happens when your estate is distributed in accordance with the law of intestate succession and to who will your assets go?
I. If you are survived by a spouse, but not by descendants - Section 1(1)(a):
If a person dies without a valid Will, and is survived by his or her spouse, but not by any descendants, i.e., by any children, grandchildren, great – grandchildren or adoptive children, then the surviving spouse shall inherit the entire intestate estate to the exclusion of any other family members.
This rule also applies to same – sex marriages/civil unions, as long as there are no adopted children or blood relatives of adopted children who can inherit. It also applies to customary marriages where the deceased had multiple wives, but no children of his own, whether biological or adopted. In this case, the surviving spouses will inherit the deceased's estate equally.
The surviving spouse will first receive any benefits to which they are entitled under matrimonial property law, and then the rest of the estate will be divided according to the law of intestate succession. As such, if the deceased was married in community of property, then the surviving spouse will first receive one half share of the joint estate, whereas, if the deceased was married out of community of property, subject to the accrual system, then then the surviving spouse will be entitled to first receive their accrual claim from the estate. By the same breath, if the deceased had a claim against the surviving spouse's estate, then the deceased's estate could receive said claim from the surviving spouse.
II. If you are not survived by a spouse, but by descendants - Section 1(1)(b):
If a person dies without a valid Will, and they are not survived by a spouse, but they do have living children, grandchildren, great – grandchildren, or adoptive children, then such descendants shall inherit the deceased’s estate, in equal shares, as its sole heirs.
Should one of the heirs have passed away prior to their parent, then their children, grandchildren or adoptive children will receive their parent’s inheritance in a representative capacity. However, should there be multiple representatives for a deceased heir, then they will share the inheritance equally.
However, should the deceased, in fact, have been survived by a spouse and descendants, and one of the descendants accordingly rejects their benefit, except for minors or mentally ill individuals, then their benefit will go to the surviving spouse in terms of Section 1(6) of the Act.
III. If you are survived by a spouse and descendants - Section 1(1)(c):
If a person dies without a valid Will, and they are survived by a spouse, as well as by descendants, the Act provides that the surviving spouse shall receive a “child’s share” or at least an amount of R250,000.00 (Two Hundred and Fifty Thousand Rand), whichever is greater. After that, the residue of the estate shall then be divided among the descendants or their representatives, if there is anything left
A child’s share is, accordingly, calculated by dividing the amount available for distribution by the number of stirpes (i.e., by the number of descendants) plus one (i.e., the surviving spouse).
If a descendant passed away without children or adoptive children of their own, then that descendant will not be included in the calculation. However, if such a predeceased descendant is represented by their own children or adoptive children, then the calculation will not be effected. Additionally, should there be more than one surviving spouse, the calculation will increase.
As such, the entire purpose of this exercise it to determine whether the surviving spouse(s) should get at least R250,000.00 (Two Hundred and Fifty Thousand Rand). If the descendants get more than that, then the surviving spouse(s) will receive a “child's share”, as well. However, if the estate is less than R250,000.00 (Two Hundred and Fifty Thousand Rand), then the surviving spouse(s) will inherit everything to the exclusion of any other descendants.
Furthermore, and as explained above, before calculating the surviving spouse(s)’ inheritance, they will first receive any benefits to which they are entitled under matrimonial property law. As such, should the deceased have been married out of community of property, excluding the accrual system, then the deceased estate will be divided, as per the above, without any adjustments.
Moreover, and as explained above, if one of the descendants rejects their benefit, except for minors or mentally ill individuals, then their benefit will go to the surviving spouse in terms of Section 1(6) of the Act.
IV. If you are not survived by a spouse or descendants, but are survived by either or both of your parents - Section 1(1)(d)(i) and Section 1(1)(d)(ii):
If a person dies without a valid Will, and is not survived by a spouse or descendants, but is survived by both of their parents (including adoptive parents), then the parents shall inherit the intestate estate in equal shares, to the exclusion of the deceased’s brothers or sisters.
However, if one of the deceased's parents had already passed away, then the surviving parent will receive one half of the estate and the other half will go to the second parent’s descendants in equal shares. Nevertheless, should the deceased parent not have left any descendants, then the surviving parent will also receive the other parent’s share.
V. If you are not survived by a spouse, descendants or by your parents, but are survived by siblings who share one biological parent with you, i.e. half – blood siblings - Section 1(1)(e)(i)(aa):
If a person dies without a valid Will, and is not survived by a spouse, descendants or by either or both of their parents, then the intestate estate shall be divided in half and the descendants on the respective deceased parents shall each inherit one half share of the estate from their parent’s side. In effect, the deceased’s siblings and/or their representatives, who are related to the deceased through their father only (including adoptive children), will each inherit from the father’s half share in equal parts, whereby the same is applicable to the descendants on the predeceased mother’s side.
VI. If you are not survived by a spouse, descendants or by your parents, but are survived by siblings who share both biological parents, i.e. full blood siblings - Section 1(1)(e)(i)(bb)
If a person dies without a valid Will, and is not survived by a spouse, descendants or by either or both of their parents, but is survived by descendants of both the predeceased parents, i.e., the deceased’s own brothers and sisters, or their representatives, then the estate shall, once again, be divided in two equal shares and the descendants of both parents shall inherit both halves of the intestate estate, in equal shares, and by representation, if applicable.
VII. If you are not survived by a spouse, descendants or by both parents, but are survived by siblings who share either or both biological parents, i.e. full blood siblings and half – blood siblings - Section 1(1)(e)(i)(cc)
If a person dies without a valid Will, and is not survived by a spouse, descendants or by either or both of their parents, but is survived by descendants of either or both predeceased parents, i.e., by full blood and half – blood siblings, then the estate is, once again, divided in two equal shares and shall devolve upon the descendants through their relation to their predeceased parents.
In other words, the deceased’s full blood siblings, who are related to the deceased through both parents, shall inherit with “both hands”, i.e., via the father and the mother, while the deceased’s half – blood siblings shall only inherit with “one hand”, i.e., via the common parent.
VIII. Other competent heirs - Section 1(1)(f)
If a person dies without a valid Will, and is not survived by a spouse, or by descendants, by parents or by any siblings, then the other blood relations of the deceased, in relation to the nearest degree, shall inherit the intestate estate in equal shares.
As such, the deceased’s grandparents, who are related to the deceased in the second degree (and thereby the nearest blood relation), shall inherit the estate equally to the exclusion of anyone related in the third degree, such as aunts and uncles, who will only inherit if there are no living descendants to the deceased in the second degree.
IX. No intestate heirs - Section 35(13) of the Administration of Estates Act No. 66 of 1965
Should a person die intestate and there are no competent heirs who can inherit from the deceased’s estate, i.e., if the deceased does not have any living family members, then the Executor is bound by the provisions of the Administration of Estates Act to pay the residue of the estate into the Master’s guardian fund. To this end, if no competent heirs can be found after a period of 30 (thirty) years, then the deceased’s funds will be forfeited in favor of the state.
CONCLUSION
In light of the above, it is clear that the creation of a valid Will is a proactive measure that allows an individual to specify their wishes regarding the distribution of their assets after death and will prevent any potential uncertainties and/or disputes that may arise in the event of the law of intestate succession. Furthermore, by having a valid Will, you will accordingly be able to designate beneficiaries and avoid the risk that your estate may be inherited by distant relatives or by individuals who either had not played a part in your life or whom you did not intend to benefit. This control over one's legacy can be comforting and helps ensure that loved ones are provided for in the desired manner upon your passing and allows you to appoint an executor, whom you trust, to oversee this process.
As such, it is prudent to consult with an attorney who will offer a proactive approach to your estate planning and who can assist you in creating a valid Will, which will minimize the risk of unintended beneficiaries inheriting from your estate, while providing a level of control over the distribution of your assets in the administration procedure.
JW Wessels and Partners Incorporated
Kindly be advised that we assist with the drafting and subsequent safekeeping of Wills, amongst a wide array of other professional legal services, such as the administration and distribution of deceased estates. Should you have any additional questions, please do not hesitate to contact us for more information.
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