Intestate Succession is a term not often understood by people but it will be applicable to your loved ones if you die without a valid Last Will.

Under the provisions of Intestate Succession Act, the two main features which play a role in identifying your heirs are:

  1. Consanguinity (family), and
  2. The degree of kinship.

Here are 7 easy to understand rules which apply. For those interested in some light reading after dinner, you will find these under Section 1 (1) (a) – (f) of the Intestate Succession Act.

Rule 1: The Estate of a deceased who is survived by only a spouse with no descendants (children). The surviving spouse will inherit the whole estate.

Rule 2:  The Estate of a deceased who is survived by descendants but not by a spouse. The descendants will inherit the intestate estate in equal shares.

Rule 3: The deceased is survived by a surviving spouse and descendant(s) – The surviving spouse will receive the greater of R250, 000 or a descendant’s portion. The descendant(s) will inherit the remaining portion in equal shares.

Rule 4: The deceased is not survived by a surviving spouse or descendants but by both parents – The parents will inherit the intestate estate in equal shares.

Rule 5: The deceased is not survived by a spouse or descendants but by one parent and descendants of the predeceased parent (brother/sister) – The surviving parent shall receive half the intestate estate. The descendants of the deceased parent (brother/sister) shall receive the other half. Should there be no descendants; the surviving parent will inherit the entire intestate estate.

Rule 6: The deceased is not survived by a spouse, descendants or parents but by descendants of the predeceased parents (brother/sister) – The intestate estate will be divided into two equal shares between the following parties:

  1. The descendants related to the deceased through his/her mother’s side of the family and
  2. The descendants from his/her father’s side of the family

Rule 7: The deceased is not survived by a spouse, descendants, parents, but by family in the third or further orders of succession – your nearest blood relations will inherit your estate in equal shares. This is an excellent example of “degree of consanguinity or relatedness”.

Let’s look at a practical example:

John dies intestate (without valid Will) and leaves behind two sons (Kevin and Peter) and a grandson, Timmy (the child of his predeceased son, Michael). In a holistic view of John’s death, his 3 sons would have inherited in equal shares.  But seeing that Michael predeceased his father, Michael’s son, Timmy forms a per stirpes

[1] and can inherit as heir in his father’s capacity. Therefore, at John’s death, Kevin, Peter and Timmy will inherit in equal shares.

Blood relations can be divided into 3 categories, namely:

  • Your descendants – who descend directly from you, i.e. your children, grandchildren and great grandchildren
  • Your ascendants – from whom you descend, i.e. your parents and grandparents
  • Your collaterals – relatives such as brothers, sisters, nieces, etc.

Some of you might be asking yourself the question, “What about adopted or illegitimate children?” 

Yes, many households take on the role of adopting an infant due to various reasons. Legislation has been regulated within the Act and an adopted child shall be deemed by law as your legitimate child as if the child was borne by you.

The change in legislation also ensures illegitimate children are considered as heirs to inherit from either parent.

In Summary, if you choose not to have a valid Will drawn up before death:

  • You sacrifice the opportunity to choose your beneficiaries
  • You drag out the process. Appointing an executor can become a rather lengthy process as the Master will need to convene with your loved ones first to see if they are comfortable in appointing that executor;
  • You limit the inheritance to your spouse;
  • Sub-optimal asset disposals. Intestacy can cause unnecessary sale of assets in order to finalise the deceased estate;
  • You jeopardize your business if you are an owner, as your death can cause the bank to immediately freeze your accounts until an executor is appointed.

In theory, dying Intestate is not a practical choice of Succession. For a small amount of effort you can save your loved ones a lot of trouble, and let them deal with your loss on their own terms.

Why not talk to us?

[1] Per Stirpes – Refers to the surviving child of the Deceased as well as the case of the predeceased child survived by a descendant.  In this case, Timmy