Source: A simple guide to South African Family Law by Nthabiseng Monareng

Introduction

One of the most important things that a person needs to think about is death and how their assets will be distributed after their death. When a person dies, their assets will be distributed either in terms of their will (testate succession) or according to the rules of intestate succession, if the person has not left a will.

Intestate succession (dying without a will)

When a person dies without leaving a will, that person is referred to as having died intestate. This means that the deceased’s assets and property will be distributed in terms of the Intestate Succession Act 81 of 1987.

In terms of intestate succession law, only certain people, called beneficiaries, can inherit from the deceased’s estate. These beneficiaries are: the deceased’s legal spouse, children, blood relatives, and adopted children.

A deceased’s estate consists of liabilities (debts) and assets (properties, money, car, household furniture, and so on). If the deceased was married in community of property, the surviving spouse must receive his or her half share of the joint estate. If the deceased was married out of community of property but with the accrual system, the surviving spouse might have a claim against the deceased’s estate for an accrual share. Only once the debts have been paid off, and the surviving spouse has received his or her share in terms of the marriage in community of property or his or her share in terms of the accrual system, can the deceased’s estate be distributed.

Procedure for inheriting intestate

When the deceased has left a spouse and children

The spouse and biological children will inherit. Firstly the child’s share has to be calculated.

Child’s share

When a spouse dies and is survived by a surviving spouse and children, a child’s share must be calculated. To calculate a child’s share you divide the value of the estate by the number of children of the deceased, plus one (the surviving spouse).

• The law says that a spouse must receive R250 000 or a child’s share, whichever is the higher amount.

Example 1

John dies and he leaves his wife Mary and three children. His estate is worth R1 000 000 after payments of debts. Take R1 000 000 and divide it into four. The result will be R250 000. All four will get R250 000 each.

Example 2

John dies leaving behind four children and a wife. His estate is worth R1 000 000, after payment of debts. You take R1 000 000 and divide it by five. The result will be R200 000. The wife gets R250 000 and the children share the difference of R750 000 and each R187 500.

• In the examples above, the marriage was out of community of property.

Example 3

John and Mary were married in community of property. John dies and leaves a joint estate worth R600 000 after payments of debts. He also left behind a wife and two children. Mary has to receive her half share before distribution can occur. R600 000 divided into two is R300 000. Mary will firstly receive R300 000 under matrimonial property law. Mary and the children will then share the remaining R300 000.

A child’s share has to be calculated first. R300 000 divided into three (Mary and two children) is R100 000. Because the amount is lower than R250 000, Mary will receive R250 000, and the children will share the rest of the money. In the end, Mary inherits R250 000, and receives the R300 000 by virtue of the marriage in community of property.

If any of the deceased’s children have died and have left children of their own (for example, grandchildren of John), the children will take the place of their deceased parent and inherit his or her share. They will then divide the share that would otherwise have gone to their deceased parent equally between them.

When only a spouse survives the deceased

When married spouses do not have children and one of the spouses dies, the surviving spouse will inherit the entire estate. The deceased’s parents, brothers and sisters will inherit nothing.

When only the children survive the deceased

The children will inherit the entire estate and share it equally.

When the deceased dies without a spouse or children

If the deceased’s parents are still alive, each one will inherit half of the estate. If only one parent is alive, the dead parent’s children or grandchildren will inherit in the place of their parents. Only if the parent does not have children or grandchildren will the other parent inherit the entire estate.

Where there are no parents, the deceased’s estate will be inherited by his siblings equally. If one of them has passed away leaving children, the children will inherit the share of the deceased’s sibling.

When the deceased does not have a spouse, children, parents or siblings

The closest blood relative of the deceased will inherit. Close in terms of blood relations means, for example, uncles, aunts, cousins, and so on. It does not mean close in terms of who was living close to the deceased or who was in a close personal relationship with the deceased.

General notes about intestate succession

1. An illegitimate child has a legal right to inherit from his or her father.
2. An adopted child can inherit from his adoptive parents and their blood relatives. The child cannot inherit from the natural parents and their blood relatives and they in turn cannot inherit from the child. The only time they can inherit is when they are named as beneficiaries in the child’s will.

Testate succession (dying with a will)

When a person dies and has left a will, that person has died testate.

What is a will?

A will is a written document in which a person, called the testator, voluntarily stipulates how his or her estate will be distributed after his or her death.

Drafting a will

Requirements for drafting a will

• The testator must be over the age of 16.
• He or she must be a person of sound mind, in other words, must be mentally capable.
• The testator must draft the will personally. However, there are circumstances whereby a third person can draft a will on behalf of the testator, for example, if it is drafted by a lawyer, or by a third person on behalf of a testator who cannot read or write.

Procedure for drafting a valid will

1. The will must be in writing.
2. The testator must sign it at the end in the presence of at least two witnesses. If the will is more than one page long, every page must be signed by the testator. If the testator cannot read or write, he can sign by making a mark (X), or someone else can sign on his or her behalf. In either of these cases, the will must be signed in the presence of the testator, two witnesses and a commissioner of oaths.
3. If the testator signs by a way of a mark (X), or if someone else signs the will on the testator’s behalf, a commissioner of oaths must attest the document, by putting the prescribed certificate on the will and signing every page of the will other than the page on which the certificate appears.
4. Two or more witnesses must sign the will in each other’s presence and in the presence of the testator.
5. The witnesses must not be named as beneficiaries in the will.