Owning Property without a Will

9 Apr 2017

If you die without a Will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your Will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your Will, you should also prepare the following in relation to any immovable property you may own:

State where your title deeds are kept and record any outstanding bonds and all insurance
File up-to-date rates and taxes receipts
Record details of the leases on any property you have
State who collects your rent
State who compiles your yearly accounts
State where your water, lights and refuse deposit receipts are kept
If you die without a Will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

Only spouse survives: Entire estate goes to spouse.
Only descendants survive: Estate is divided between descendants.
Spouse & descendants survive: The spouse gets R2.5 million or a child’s share and the balance is divided equally between the spouse and descendants.
Both parents survive: Total share is divided equally between both parents.
One parent: Total Estate goes to the parent.
One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.


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