Business Intelligence (BI) reporting: Understanding the story
July 7, 2014
Om sonder ‘n testament te sterf
July 7, 2014

Dying without a will

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It is estimated that more than 50% of deaths in the South African population occur without leaving a will, or with an outdated will, or with a will that is altogether invalid.

When someone dies without leaving a valid will he/she dies intestate and the estate is administered in terms of the Intestate Succession Act 81 of 1987 (the Act).

This does not necessarily mean that your assets go to the state, but the Master of the High Court does take control of your deceased estate and your assets are distributed according to a fixed formula. One of the biggest disadvantages of this happening is that it could take years for your estate to be settled and distributions made to your next of kin. Furthermore, the state appoints an executor and the executor’s fee payable to the person administering your estate cannot be negotiated, which in most instances results in a more expensive transaction than is the norm.

In terms of the Act your next of kin inherit the assets in your estate. We provide some basic examples of the effect that such an intestate death can have on the distribution of an estate:

Example 1: The predeceased is single

If you were single your close relatives will inherit all your assets in terms of the Act. Close relatives include, firstly, your parents. If your parents died before you, your brothers and sisters will be your close relatives.

Example 2: The predeceased is married, with two children

Let us assume you were married, you are survived by your spouse and two children of full age, and the value of your estate is R2 100 000.

  1. If you were married out of community of property, your spouse inherits R125 000 or a child’s portion[1]
    whichever is the greatest. In this scenario your spouse and each of your children thus inherits R700 000 (R2 100 000 / 3).
  2. If you were married in community of property the first 50% of your estate belongs to your spouse in terms of the law of marriage. In other words, the remaining 50% is available for distribution between your spouse and your children, according to the same formula as above.Your spouse therefore inherits the greater part of R125 000, or a child’s portion, in respect of the remaining half of your estate.In this scenario a child’s portion is calculated by dividing half of the total value of your estate by the sum of your spouse and your number of children, which amounts to R350 000 (R1 050 000 / 3). Your spouse therefore inherits a total of R1 400 000, comprised of the R 1 050 000 plus R350 000, while your children both inherit R350 000.

Example 3: The predeceased has two underage children

If you do not designate a guardian for your underage children in your will, the Master of the High Court will appoint a guardian who will look after them and their assets after your death.

The assets of your underage children, as well as the assets they inherit in terms of your estate, will be handed over to their guardian, if the guardian can provide security to the Master of the High Court. Should the guardian be unable to provide security, the assets and inheritance of such children are deposited in the Guardian’s Fund[2]. The Fund then has control over and limited access to the funds and the guardian may only gain access to these funds by applying therefor, and the funds are then paid to whichever body should be paid.

To avoid the problems associated with dying intestate we recommend that you review your will regularly, especially when:

  • your personal circumstances change;
  • you acquire new assets;
  • your assets increase in value beyond expectation; or
  • you receive a bequest.

We recommend that you approach a body or an individual that has the necessary knowledge and experience of drafting wills, to discuss your specific circumstances and draft a will that gives proper effect to your wishes and is also practicable. We realise that death is unavoidable, but a will can make a big difference in the lives of your next of kin.

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If you do not already have an estate adviser we should like to assist you to draft a will or to revise your existing will. Please contact your relationship director or Pieter Aucamp.

[1] A child’s portion is defined as the value of your estate divided by the number of persons in your family (spouse + children)

[2] The Guardian’s Fund is a fund under the exclusive control of the Master of the High Court, established to manage the inheritance of children that do not have a legal guardian, or children with a guardian that cannot provide sufficient security.