What happens to your property and assets if you die without a will?

3 Oct 2019

In South Africa we are most fortunate to have a legal system where the person making a will (called the “Testator”) has “freedom of testation”. This means that the Testator who wants to provide for the division of his estate to various beneficiaries (including family, friends, spouses, or charitable parties) is able to freely make such a stipulation in a written will. He may also freely disinherit any person from getting any benefit from his estate.

In order to be able to give effect to this, the Testator must make a valid will which complies with all the formalities of the Wills Act. Failure to comply fully with the requirements of this Act can result in the will being declared a nullity or, in some cases, it will necessitate a lengthy and expensive application to the High Court to declare the will to be the valid will of the Testator.

If a will is invalid, or if the Testator fails to make a will, the persons who will automatically inherit the estate of the Testator will be determined in terms of the prescribed laws of Intestate Succession. In essence, the basic rules of intestate succession are as follows:

1. If the deceased is survived by a spouse, but no descendants, then the spouse will inherit the whole estate;
2. If the deceased is not survived by a spouse, but is survived by descendants (children), then the descendants inherit the entire intestate estate equally. In this instance, should any one child have predeceased the Deceased parent, leaving children of his own, then his children (the deceased’s grandchildren), will inherit the share of his deceased parent;
3. Where the Deceased person is survived by a spouse and children, then the surviving spouse inherits whichever is the greater of either a child’s portion (also called a child’s share) or an amount fixed from time to time by the Minister of Justice. The amount is presently R250 000. The descendants of the deceased then inherit equally what is left (called the residue) of the intestate estate.

The rules of intestate succession are further complicated by the provisions of the Matrimonial Property Act which determines whether or not the estate is in or out of community of property and whether one is dealing with a joint estate (in community) or not.

Where the major asset in an estate is a family home, it is very important to stipulate in a will who the beneficiaries will be and if any beneficiary is a minor, how the minor’s interests in the property will be dealt with and administered on behalf the minor.

If there is no will it is important to remember that the assets of the minor will be administered by the Guardians’ Fund in the office of the Master of the High Court until such minor reaches the age of majority (i.e. 18 years). In essence, you are putting the control and management of the minor’s inheritance in the hands of the Government.

If the beneficiaries wish to deal with the property (for example, sell or mortgage) whilst any beneficiary is a minor, then the Master of the Court (depending on the value of the minor’s share) has to authorise the sale or mortgage of the property. This can be an expensive and cumbersome exercise which can easily be avoided by making appropriate provisions in a will.

To illustrate the problem which intestacy can result in, here is an example:

If the deceased died leaving enough money to cover only estate expenses and a property valued at say, R1 million, and died without a will, leaving a spouse and three children (aged 3, 9 and 15), the property will end up being registered in the names of the spouse and each of the three minor children.

Each one will inherit a ¼ share in the property. If the spouse needs to sell the property she will have to get the consent of the Master (or perhaps the Court) for each of the minor children. If the Testator had made a valid will leaving the residue of the estate to the surviving spouse, then this problem would not arise as the spouse can deal with the property as she wishes.

Alternatively, if the Testator wanted to protect his minor children, he could have created a Trust for the purposes of administering the children’s inheritance and the appointed Trustees could have made all the decisions instead of having to apply to the appropriate government department. There would be no red tape or government intervention required and the property could be sold without delay.

The above is merely an example of why it is so necessary to make a will, especially if the Testator owns immovable property and has minor children.

This article is a brief and simplified explanation of what is really quite a complex and difficult field of law. For more detailed explanations, consult an attorney who is a specialist in this field of law.

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