Dying without a Will

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By SIYANDA MAKUNGA

In our previous article we stressed the importance of preparing for death. In this article, we will discuss the legal consequences of dying without a will. In our next article (on 16 October 2020) we will discuss the preparation of a Will.

Let us first look at the scenario below.

Scenario
Sipho is a father of five minor children born of previous relationships. He marries Siphokazi on 1 June 2020 in community of property. Two months later he passes away without leaving a Will. The couple’s joint estate is valued at R200 000. Siphokazi is entitled to receive her 50% share in the value of the joint estate by virtue of her marital regime. Further, the remaining amount of R100 000 (Sipho’s share) will be inherited by Siphokazi in terms of the laws of intestate succession.

Unfortunately, the five minor children will not inherit anything from their father’s estate. Sipho could have made provision for securing the financial needs of the minor children by creating a Will and nominating them as beneficiaries of his estate.

DYING WITHOUT A WILL: INTESTATE SUCCESION
A deceased’s estate consists of both assets (property, money, furniture etc) and liabilities (debts). When a person dies without leaving a Will, that person is said to have died intestate. Their estate will be distributed according to the principles of the Intestate Succession Act 81 of 1987. The Act determines who is entitled to inherit from the deceased’s estate. The beneficiaries will be determined on case by case basis depending on the following:

  • The value of the estate
  • The legal spouse and marital regime
  • The biological and adopted children
  • Blood relatives

If the deceased was married in community of property, the surviving spouse will retain her one-half share of the joint estate. The deceased’s half share will devolve in terms of the laws of intestate succession. If, however, the deceased was married out of community of property according to the accrual system, the surviving spouse may have a claim against the deceased’s estate for a share of the amount accrued.

The following is a summary of the most important principles of intestate succession.

If the deceased is survived by:

  1. A spouse and no children: the surviving spouse will inherit the entire estate.
  2. Children but no spouse: the children will inherit in equal shares.
  3. A spouse and children: the spouse will inherit either R250 000 or a child’s share, whichever is greater. The children will inherit the remaining balance in equal shares.
    Please note: if the value of the estate is less than R250 000, the spouse will inherit the entire estate.
  4. Parents only: the parents will inherit the estate in equal shares. If one parent is deceased, the surviving parent will inherit one half of the estate, and the children of the deceased parent will inherit the other half.
  5. If both parents have died: the estate will be inherited by the deceased’s siblings. If one of the siblings died before the deceased, their share will be inherited by his/her children.
  6. No spouse, children, parents or siblings: the closest blood relative of the deceased will inherit.
  7. If all blood relatives have died or cannot be located: the estate is paid to the Guardians Fund where it will remain for 30 years and if unclaimed, will be forfeited to the State.

Please note: the word “spouse” includes a partner in a permanent same-sex life partnership, spouses in religious and polygamous marriages, and spouses in customary marriages. All children of a deceased parent are entitled to inherit, regardless of whether the child was born of the marriage, out of wedlock or adopted. A minor child’s share will be held by the Guardians fund at the Master of the High Court until the child reaches the age of majority (18 years of age).

We have highlighted the legal consequences of dying without a Will. Our advice is to create a Will to ensure that all the loved ones that you choose are able to inherit from your estate. Our next article will provide guidelines for the creation of a valid Will.

Please note: The Rhodes University Law Clinic will be participating in National Wills Week, which runs from 26-30 October 2020. During this time, the Clinic will draft free basic Wills for any member of the public. Should you wish to have a Will drafted, please contact the Clinic’s reception (046 603 7656) before or during National Wills Week to make an appointment to consult. Please note that capacity is limited, and so clients will be assisted on a first-come, first-served basis.

Rhodes University Law Clinic helping you

 The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to indigent people in most areas of law. The Law Clinic’s New Street offices are open during ordinary business hours, and is available to those members of the public who qualify for assistance in terms of a means test.

For more detail, please contact:
Rhodes University Law Clinic
41 New Street, Grahamstown
Telephone 046 603 7656
lawclinic@ru.ac.za

Dying with a Will

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