What happens if a person dies without a Will?

• If a person (“deceased”) dies without a Last Will and Testament, his/her deceased estate (the assets s/he owned at time of death) will be distributed in terms of the Intestate Succession Act (“Act”). This is also known as the rules of intestate succession.
• Due to there being no Will setting out the deceased’s wishes, the Act sets out certain rules in respect of how the deceased estate must be distributed to his/her heirs (persons who will receive the deceased’s assets).
• The Act aims to distribute the deceased estate to close relatives first (in a specific order), for example:
  • If the deceased is survived by only a spouse, the spouse will inherit his/her entire deceased estate. The term “spouse” also includes a same-sex civil union in terms of the Civil Union Act, a spouse in a religious marriage and polygamous spouses in terms of customary marriages. A spouse does not include a partner in a cohabitation relationship.
  • If the deceased did not have a spouse and is only survived by his/her children, then his/her children will inherit the deceased estate in equal shares.
  • If the deceased is survived by a spouse and children, then the spouse will receive a child’s share or R 250 000, whichever is the greater amount, and the children will receive equal shares of the balance of the deceased estate.
  • If the deceased did not have a spouse or children, his/her parents, aunts/uncles and/or siblings will inherit from his/her deceased estate.
  • If the deceased did not have a spouse, children, parents, aunts/uncles and siblings, his/her relatives most closely related to him/her will inherit in equal shares.
• In light of the above, the deceased does not have any control of who will inherit from his/her deceased estate if s/he dies without a Will. This might lead to instances where someone may inherit even if the deceased may have never wanted that persons to benefit from his/her deceased estate.

What if the deceased had no relatives?

• If the deceased died without a Will and had no-one who could inherit from his/her deceased estate in terms of the Act, the deceased estate will be forfeited to the State.
• This means that the money in the deceased estate will be placed in the Guardians’ Fund. If no heirs come forward to claim the money within 30 years, the money is forfeited to the State.

Who will be the executor if the deceased did not leave a Will?

• An executor is the person responsible for carrying out all the duties involved with the administration the deceased estate.
• The appointment of the executor is usually made in the deceased’s Will and is generally someone the deceased trusted to attend to the administration of his/her deceased estate.
• If the deceased did not leave a Will, s/he would have not had the opportunity to appoint an executor. The intestate heirs of the deceased’s estate may nominate a person to be appointed as the executor, however, the final decision of who should be the executor still lies with the Master of the High Court.
• This means that although the deceased may have had someone in mind who s/he would have preferred to be his/her executor, it would not always be that person.
• This may lead to a delay in the procedure, additional costs and frustration for the deceased’s family.

What happens to the children of the deceased?

• If a parent dies, the other parent will be the legal guardian of the children. However, it might happen that both parents of the child is deceased.
• A Will may nominate someone as the legal guardian of the deceased’s minor children if there is no other legal guardian left. However, it does not always mean that the nominated person will be appointed as the legal guardian, but such person will be taken into account when the final decision is made as to who should be appointed as the legal guardian.
• If a deceased did not have a Will, his/her wishes would not be taken into account and the children might be placed in the care of someone they are not familiar with or someone who the deceased did not trust. It should be noted that the best interests of the children will always be of utmost importance when a decision regarding guardianship must be made.
• A deceased might have wanted to place his/her children’s inheritances in a trust to be dealt with in a specific matter, for example, to only be paid out when a child reaches the age of 25 years (this can be provided for in a Will). However, without a Will the inheritance will be paid out in terms of the Act if the child is 18 years or older.
• If the child is still a minor, the inheritance will be kept by the Guardian’s Fund. The Guardian’s Fund is established to protect and manage money on behalf of certain persons, such as minor children.