I think it is so unfair on those remaining when a person passes away without a will as it just increases their stress.
Should there be no will an estate is administered in terms of the Intestate Succession Act 81 of 1987. In simple terms, the Law provides that we should try and ascertain who the closest descendants of the deceased are.
Therefore the questions to be asked are:
1. Is there a spouse – how were they married
2. Are there children? – Minors/majors
3. Failing a spouse, then only the children inherit equally
4. Failing children then only the spouse inherits
5. Failing a spouse and children, then the deceased’s parents stand to inherit, etc.
The spouse and the children are entitled to inherit and the split will be determined on how the parties were married, for example if the couple was married in community of property, then the spouse is already entitled to one half of the estate, and only the 2nd half of the estate is then divided between the spouse and the children, subject to certain calculations. If they are married out of community of property then the surviving spouse gets R250,000 or a child’s share. Whichever is greater, not both.
Important to note that minor children’s inheritances have to be paid to the Master of the High Court Guardian’s Fund.
This is only a guideline to follow in terms of the Act, as there can be many variables in an Intestate estate.
However a will gives the Testator/Testatrix freedom of election of heirs, Executors, and can direct what should happen to minor’s inheritance, i.e. the formation of a Testamentary Trust.
We are still doing wills and have partnered with Jan Jordaan. This means a greater benefit to our clients as you get a greater knowledge base included in the normal fee i.e. a lawyer and an accountant.
Please contact us if your will needs updating or you need a will.
