Tough questions: who inherits in South Africa when there is no Will?

Over 70% of working South Africans do not have a Will. Read that again. In a country with approximately 60.6 million inhabitants, that is a scary figure. Death is not something we like to think about, but it’s important to plan for it anyway. While many people have life insurance and funeral policies, not enough South Africans have paid attention to the importance of a Will in taking care of their loved ones after their passing.

Let’s take a look at what happens when a South African dies without a valid Will in place.

What happens when someone dies without a Will in South Africa?

Given the number of South Africans without a Will in place, this is unfortunately a frequent occurrence in South Africa. When a person dies without a Will, or one cannot be found, the Master of the High Court must appoint an executor.

The first thing the executor must do is conduct a search for the Will. If the Will is not found amongst the deceased’s personal papers and belongings, the executor must ask the deceased’s lawyer, accountant, bank or insurance provider for assistance. If a Will still cannot be found, the deceased’s estate must then be wound up as if no Will exists, even if the deceased’s relatives believe there is one.

This means that if a person passes without a Will (or if their Will is found to be invalid) their estate must be administered in line with the requirements of the Intestate Succession Act 1987. However, these rules only apply if the individual lived permanently in South Africa at the time of death. If the deceased was living in a foreign country, the laws of that country will apply.

Here’s what happens when a person dies without a valid Will

If the deceased was married in community of property, 50% of their estate must be passed to their spouse, and the rules of intestate succession cannot be applied to this half of the deceased’s estate. The remaining 50% of the deceased estate is then distributed according to the laws of intestate succession.

How is the deceased’s property transferred without a Will after death?

When the registered owner of a property dies, this property becomes part of the deceased’s estate. Where the property owner does not have a Will, the  property may only be transferred according to the processes stipulated in the Intestate Succession Act.

• Immovable property cannot be transferred to a new owner/buyer without going through the conveyancing procedure.
• Only an executor appointed by the Master of the High Court can deal with the assets of the deceased person, so only the executor can instruct a conveyancer to transfer a property out of the deceased estate.
• The rules of intestate succession are clear on the order of inheritance – surviving spouse first, then children, then parents, and then any extended blood relatives.

Rules of intestate succession: clarifying who inherits when there is no Will

• The closest relatives are entitled to inherit from the deceased in a specified order and in set proportions.
• The surviving spouse and children are always at the top of the list, but in the absence of such, the deceased’s extended family such as parents, siblings, nephews, nieces, aunts and uncles will be next in line to inherit.
• For legal clarity, the rules of intestate succession only allow blood relatives to inherit, except for legally adopted children and the surviving spouse. In other words, the rules do not apply in situations where the deceased was cohabiting without having married their partner.

Here is a brief breakdown of how intestate succession works:

Where the deceased is survived by a spouse but no children:

• The spouse gets everything as long as they meet the definition of ‘spouse’.
• A spouse is an individual involved in a valid civil marriage as defined by the Marriage Act of 1961 or a spouse in a customary marriage, as defined by section 2 of the Recognition of Customary Marriages Act of 1998.

Where the deceased is survived by children, but no spouse:

• The children will split inheritance of their parent’s estate in equal proportions.
• If any of the deceased’s children have already passed on, their children can inherit as the deceased’s grandchildren are next in line.

Where the deceased is survived by a spouse and children:

• The spouse will receive either the equivalent of a child’s share or a predetermined amount, which is R250 000 currently.
• The estate is divided by the number of remaining children (including deceased children with descendants) as well as the spouse (or spouses, in the case of customary marriages) in order to calculate a child’s share.
• As such, the spouse will get either R250 000 or a child’s share, whichever amount is higher. Thereafter, the children will inherit equally from the remainder of the estate.

What happens to retirement funds when a person dies without a Will?

• This depends on the type of retirement funds in question. A guaranteed annuity has no capital to distribute after death, while capital remaining in a living annuity will be distributed to heirs at the discretion of the Fund administrators.
• In making this decision, Fund administrators will consider people nominated on the beneficiary form as well as financial dependents, but the final decision rests in their hands.
• If there are no nominated beneficiaries or financial dependents, the retirement funds become part of the deceased estate and paid out according to the rules of intestate succession.

The importance of drafting a Will: help your loved ones avoid the complexities of intestate succession

You’re not doing it for yourself, you’re doing it for your family. The only way to avoid having the rules of intestate succession applied to your estate is to have a clear, valid Will in place that can be easily located after your passing. Given that so many banks make this facility available to clients at a small fee, there is no excuse not to plan for their future after your death. If you plan to do it yourself, make sure you comply with the legal requirements to ensure the validity of your Will cannot be contested.

If you one or more of the following applies to your life, it is strongly recommended to have a Will in place –

• You are married or cohabiting, and you want to ensure your partner is taken care of after your death.
• You have children, adopted children or children with special needs, or you want to provide for someone specific in your Will.
• You own a business or shares in a business or you own foreign assets.
• You are divorced.

FinGlobal: cross-border financial service specialists

If you’re a South African living overseas, FinGlobal can help with the process of receiving your South African inheritance overseas:

• Facilitating an inheritance from someone with assets in South Africa.
• Dealing with your assets left in South Africa (such as immovable property, shares, retirement funds or policies) where you want to specify how these must be distributed to the benefit of your loved ones after your death.

Without careful planning and expertise assistance, dealing with matters of inheritance can be frustrating and extremely time consuming. Contact us to see how FinGlobal can assist.