In short, your estate will devolve onto your intestate heirs in terms of the Intestate Succession Act 81 of 1987 and if you lived under a system of customary law, also in terms of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009. Thus, the law will determine who inherits what from you and the identity of your intestate heirs will be determined on your date of death.
Let’s look at the practical meaning of this. I will use a simplified example, where customary law is not applicable:
A.
You die without a will. You are married, and you are survived by your wife, your mom, dad and brother. No children. Who will inherit your intestate estate?
➔ Your wife will inherit your entire estate. (Nothing goes to mom and/or dad and/or brother)
B.
You die without a will. Your wife died before you did (predeceased) and you are survived by your two children, (the third child is predeceased but leaving behind two children) your mom, dad and brother. Who will inherit what?
➔ Your children will inherit your estate in equal shares. The predeceased child’s inheritance will devolve onto his children in equal shares (thus his third of your estate will be divided between his two children) If the predeceased child did not have any children, your estate will be divided equally between the two surviving children.
C.
Now, let’s say you are survived by your spouse AND the children. Thus, you are married, and you are survived by your wife, your two children (the third child is predeceased but is leaving behind two children), your mom and brother (your father is also predeceased).
Who will inherit WHAT and how much?
➔ When you are survived by a spouse AND children, the situation is more difficult. You will have to take the value of your estate (let’s say you and your wife were married in community of property and the combined value of your estate is R1 500 000.00, you need to divide it by two as 50% of the joint estate is your wife’s, in terms of matrimonial property law. This is not an inheritance; this is an entitlement in terms of their marriage in community of property.)
➔ Your estate’s value will thus be R750 000.00.
➔ Section 1(1)(c) of the Intestate Succession Act determines that a spouse will inherit a “child’s share” or the amount determined by the Minister of Justice (currently R250 000.00), whichever is the greater.
➔ A child’s share is an amount equal to the value of the estate divided by the number of children who have either survived the deceased or who have predeceased him/her but are survived by descendants, plus the number of spouses.
➔ Thus, in our example, the R750 000.00 will be divided by 4 which equals to R187 500.00.
➔ As this is less than the amount determined by the Minister, your wife will inherit R250 000.00 from your estate and the R500 000.00 will be divided equally between your “three” children. Thus, each child will receive R166 666.00.
➔ As your one child is predeceased, his R166 666.00 will go to his two children in equal shares, being R83 333.00 each.
➔ In this example, the law does not make provision for your widowed mother to inherit from you even though she does not have a husband to take care of her in her old age. A valid and well drafted will is extremely important!
When you die intestate (without a will or without a VALID will) things can easily get overly complicated. It can also happen that someone will inherit from you that you did not necessarily wanted to inherit. You have no power over or say in who gets what. The law determines it on your behalf.
And remember – If you die and you have NO INTESTATE HEIRS, your estate will be forfeited to the State.
You will be in the same boat if you have a valid will, but you omitted to deal with all your assets in your will. The assets that have not been dealt with, will devolve on your intestate heirs and not in terms of the Will.
There are also questions of law that comes into operation. For example, will your illegitimate child (child born out of wedlock) be penalized? Or will he inherit on the same basis as the legitimate children? What happens if you die while your wife is pregnant, will the unborn baby be able to inherit?
What happens if you have a child with your previous wife – will he inherit? What happens if you have an adopted child and a child born due to natural conception?
Will they inherit the same amount or is one regarded above the other?
Will your child that has been born as a result of artificial fertilization inherit the same as a naturally conceived child?
What happens to your minor child’s inheritance and will his guardian have access to his inheritance to use for his education and maintenance?
To make sure that your estate devolves onto the intended heirs and to have the peace of mind that your children and spouse are well taken care of after you passed away, make sure you have a valid and updated will.
At Marelize Le Roux Attorneys, your future-wishes are our priority. Therefore, our trusted personnel will draft a basic will free of charge with the use of virtual / telephonic consultations.
*** T’s and C’s apply
References:
Intestate Succession Act 81of 1987;
Harris v Assumed Administrator, Estate MacGregor 1987 (3) SA 563 (A)