Wills, Estates and Trusts: Intestate Succession – What Does it Mean to Die Without a Will?

THE INTESTATE SUCCESSION ACT NO. 81 OF 1987

The Intestate Succession Act No. 81 of 1987 (“the Act”) came into operation on 18 March 1988. The purpose of the Act is to determine who will inherit the deceased’s estate in the circumstances where the deceased died without leaving a Will or in the event that the deceased leaves an invalid Will. If a person dies and leaves an estate which cannot be distributed in terms of a Will, the Act will come into operation.
The Act applies when:

• The deceased did not leave a valid Will, or other legal testamentary instrument;
• The testator/deceased did leave a Will, but it is wholly or partially invalid; and/or
• The testator/deceased left a Will but failed to dispose of the whole estate.The Act will also apply in the case where a deceased leaves a Will, however, certain conditions in the Will are not fulfilled, or a beneficiary of the Will repudiates in which case the law of Intestate Succession will apply. This means that it is possible for an estate to become intestate at a later stage or that a person can die partly testate and partly intestate as was evident in the case of Verseput v De Gruchy NO 1977 (4) SA 440 (W).

The marital property regime of the deceased is also of importance in terms of Intestate Succession as it will impact the distribution of the deceased’s estate. If the deceased was married IN community of property (i.e no antenuptial contract was entered into), only 50% of the net joint estate will devolve amongst the deceased’s intestate heirs, while the deceased’s surviving spouse will retain the other 50% of the estate.

HOW WILL MY ESTATE BE ADMINISTERED?

Who will be the executor if the deceased did not leave a will?

An executor of a deceased estate is the person responsible for performing all the duties involved with the administration of the deceased estate in terms of the Administration of Estates Act 66 of 1965.

An appointment of an executor is usually made in the deceased’s Will and is usually someone the deceased trusted. If the deceased did not leave a Will, the deceased would not have had the chance to appoint an executor of his/her choice and as such, the intestate heirs of the deceased’s estate may nominate a person to be appointed as the executor, however, the final decision of appointment lies with the Master of the High Court. Once the executor is appointed, he is authorised to administer the deceased’s estate.

WHO WILL INHERIT MY ESTATE IF I DIE INTESTATE?

The basic principles

As mentioned above, if you die intestate the Intestate Succession Act No. 81 of 1987 will apply. The Act will determine who your intestate heirs are. The various possible intestate heirs will be based on which relatives are alive at the date of the death of the deceased. The various possibilities of intestate heirs will be discussed in more detail below.

The deceased is survived only by their spouse

If the deceased is survived only by his spouse(s), the spouse(s) will inherit the entire intestate estate (S1(1)(a) of the Act).

As previously mentioned the marital property regime is also of importance in that if the deceased was married IN community of property, the surviving spouse will receive one half of the estate by virtue of the marriage in community of property and the other half by virtue of the Act. If the deceased was married OUT of community of property, the surviving spouse shall inherit the entire estate by virtue of the Act. The Constitutional Court decision in Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC) made it clear that the Act also recognises polygamous marriages, where the deceased had more than one spouse, and provides that in such cases the deceased’s estate is divided equally between the spouses.

Descendant(s) as the sole heirs

Descendants are a person’s offspring and when a deceased is survived by his/her descendants only, then those descendants will inherit the entire intestate estate in equal portions per stirpes through representation (S1(1)(b) of the Act).

Spouse and descendant(s) as heirs

When the deceased is survived by both a spouse and descendant(s), the spouse will inherit the greater of R250 000 (this amount has changed) or a child’s share of the intestate estate (S1(1)(c)(i)) and the descendants inherit the residue (if any) of the intestate estate equally (S1(1)(c)(ii)). A child’s share is calculated by dividing the value of the deceased’s estate by his/her number of surviving children or deceased children who have left their own children, plus the number of the deceased’s surviving spouse(s).

It is also important to note that our law does not distinguish between children born in or out of wedlock therefore, illegitimate children have the same right of inheritance as what the deceased’s legitimate children have. Moreover, in the case of an adoptive child, such child is deemed to be a descendant of the adoptive parent(s) and will therefore be entitled to inherit from the intestate estate as if they are natural children.

Deceased’s parents as heirs

If the deceased is not survived by a spouse or any descendants, but is survived by both his/her parents, both parents will inherit the intestate estate in equal shares (S1(1)(d)(i)). If only one of the deceased’s parents are alive, the living parent will inherit half of the deceased’s intestate estate and any descendants of the pre-deceased parent will inherit the other half in equal shares. If the pre-deceased parent has no living descendants then the living parent of the deceased will inherit the deceased’s entire intestate estate (S1(1)(d)(ii)).

Descendants of deceased’s parents as heirs

If for instance the deceased is not survived by any spouse, descendant(s) or parents, but is survived by descendants of his/her pre-deceased parents then the intestate estate of the deceased shall be divided into two equal shares and the descendants related to the deceased through the deceased’s mother will inherit half of the estate and the descendants related to the deceased through the deceased’s father will inherit the other half of the estate (S1(1)(e)(i)).

Blood relatives in the nearest degree as heirs

If the deceased is not survived by a spouse, descendants, parents, or siblings then the deceased’s blood relatives who are related to the deceased in the nearest degree will inherit the deceased’s entire estate in equal shares.

Renunciation and disqualification of an heir

If a descendant of the deceased, who, together with the surviving spouse of the deceased, was entitled to inherit from the intestate estate, renounces his/her right to receive such benefit, then such benefit shall vest in the surviving spouse. If an heir is disqualified from benefiting from the intestate estate or renounces his/her right to be an heir of the intestate estate of the deceased then any benefit he/she would have received (if he/she had not been disqualified or renounced his/her right) shall devolve as if he/she had pre-deceased the deceased.

Deceased is not survived by any blood relatives

If the deceased has no surviving descendants, ascendants or any blood relatives and no legitimate heir makes a claim against the deceased’s estate after 30 years, then the intestate estate of the deceased will be forfeited to the State.

Conclusion

It is important to understand the Intestate Succession Act as it plays a key role in determining how a deceased’s estate is administered when there is no Will. It is also important to note that it is not adequate to merely draw up a Will as you would also need to ensure that your Will meets all the validity requirements provided for in the Wills Act No.7 of 1953. If a Will fails to meet these validity requirements, the Intestate Succession Act will automatically become applicable and any desires that the deceased might have had regarding the administration and distribution of his/her estate will not be carried out. It is always recommended that you have a skilled and experienced professional draft your Will to ensure that your desires regarding the administration and distribution of your estate are met.

Written by Jessica-Lee Koster; jkoster@dkvg.co.za
For all your wills and estates queries, contact an attorney at DKVG.

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.