Passing Away Without a Will
Passing Away Without a Will in South Africa: A Comprehensive Guide
Passing away without a will can lead to complex legal procedures and unintended consequences for surviving relatives. In South Africa, the absence of a valid will means that the deceased’s estate is distributed according to the Intestate Succession Act 81 of 1987. This guide provides an in-depth look at what happens when someone passes away without a will, referencing relevant legal authorities and offering practical insights.
Understanding Intestate Succession (Passing away without a will)
When a person dies intestate—passing away without a will—their estate is distributed according to the rules set out in the Intestate Succession Act 81 of 1987. The Act aims to ensure a fair distribution of assets among the deceased’s closest relatives.
Legal Authority
Intestate Succession Act 81 of 1987
The Role of the Master of the High Court, when parties pass away without a will.
Upon passing away without a will, the estate must be reported to the Master of the High Court within 14 days. The Master oversees the administration process and appoints an executor if none was nominated.
Legal Authority
Administration of Estates Act 66 of 1965, Sections 7 and 13
Appointment of an Executor
The executor is responsible for administering the estate, which includes collecting assets, paying debts, and distributing the remaining assets to heirs.
Duties of the Executor
Collecting Assets: Gathering all assets of the deceased.
Settling Debts: Paying off any debts and taxes owed.
Distributing Assets: Allocating the remaining estate to rightful heirs.
Legal Authority
Administration of Estates Act 66 of 1965, Sections 14 and 18
Distribution of the Estate when passing away without a will.
The distribution depends on the surviving relatives at the time of passing away without a will.
Surviving Spouse and No Descendants
If there is a surviving spouse but no descendants, the spouse inherits the entire estate.
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(a)
Surviving Spouse and Descendants
The estate is divided between the spouse and descendants:
The spouse receives either a child’s share or R250,000, whichever is greater.
The child’s share is calculated by dividing the estate by the number of children and the spouse.
Example
If the estate is worth R900,000, with a spouse and two children:
Child’s share: R900,000 ÷ (2 children + 1 spouse) = R300,000
Each party inherits R300,000.
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(c)
Descendants Only
If there is no surviving spouse, the descendants inherit the estate in equal shares.
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(b)
No Spouse or Descendants
The estate passes to the deceased’s parents:
If both are alive, they inherit equally.
If one is deceased, the surviving parent inherits everything.
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(d)
No Spouse, Descendants, or Parents
The estate is divided among siblings. If a sibling predeceased but has descendants, those descendants inherit per stirpes (by representation).
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(e)
No Immediate Family
If none of the above relatives are alive, the nearest blood relatives inherit according to the degree of kinship.
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(f)
Bona Vacantia (Vacant Goods)
If there are no relatives, the estate passes to the state.
Legal Authority
Intestate Succession Act 81 of 1987, Section 1(1)(g)
Special Considerations When Passing Away Without a Will
Customary Law and Polygamous Marriages
Polygamous customary marriages are recognized, and each spouse is entitled to a share equivalent to that of a child.
Legal Authority
Recognition of Customary Marriages Act 120 of 1998
Case Law
Bhe and Others v Magistrate, Khayelitsha, and Others [2004] ZACC 17: The Constitutional Court ruled that the customary law rule of male primogeniture was unconstitutional, ensuring equal inheritance rights.
Adopted Children
Adopted children have the same inheritance rights as biological children.
Legal Authority
Children’s Act 38 of 2005, Section 242
Children Born Out of Wedlock
All children inherit equally, regardless of their parents’ marital status.
Legal Authority
Law of Evidence Amendment Act 45 of 1988, Section 1(2)
Case Law
Wesley v Methodist Church of Southern Africa [2006] ZASCA 27
Maintenance Claims by Surviving Spouse
A surviving spouse may claim reasonable maintenance from the estate.
Legal Authority
Maintenance of Surviving Spouses Act 27 of 1990
Case Law
Daniels v Campbell NO and Others [2004] ZACC 14: Extended maintenance rights to spouses in Muslim marriages.
Cohabitation Partners
Partners not legally married are not entitled to inherit under intestate succession.
Case Law
Volks NO v Robinson and Others [2005] ZACC 2: Cohabitation partners are not considered spouses for inheritance purposes.
Estate Administration Process
Reporting the Estate
The death must be reported to the Master of the High Court.
Advertising for Creditors
Notices are published to allow creditors to submit claims.
Legal Authority
Administration of Estates Act 66 of 1965, Section 29
Settling Debts
The executor pays all valid debts and taxes.
Preparing the Liquidation and Distribution Account
A detailed account is prepared, showing how the estate will be divided.
Legal Authority
Administration of Estates Act 66 of 1965, Section 35
Inspection Period
The account is open for public inspection for 21 days.
Distribution of Assets
After resolving any objections, the executor distributes the assets.
Finalization
The estate is finalized once the Master issues a filing slip.
Tax Obligations
Income Tax
All outstanding taxes must be settled.
Legal Authority
Income Tax Act 58 of 1962
Estate Duty
Estate duty is payable on estates exceeding R3.5 million.
Legal Authority
Estate Duty Act 45 of 1955, Section 4A
Challenges When Passing Away Without a Will
Disputes Among Heirs
Complex family structures can lead to disputes and delays.
Legal Authority
Administration of Estates Act 66 of 1965, Sections 35(7) and 35(8)
Claims by Creditors
Creditors may deplete the estate, leaving heirs with less than expected.
Insolvent Estates
If debts exceed assets, the estate is declared insolvent.
Legal Authority
Insolvency Act 24 of 1936
Importance of Having a Will
Passing away without a will can result in unintended consequences:
Exclusion of Unrelated Dependents: Friends and unmarried partners may receive nothing.
Inequitable Distribution: The statutory distribution may not reflect personal wishes.
Administrative Burden: Without clear instructions, the process becomes more complex.
Steps to Prevent Intestacy
Draft a Valid Will
Clearly state how you want your assets distributed.
Legal Authority
Wills Act 7 of 1953
Update the Will Regularly
Review your will after major life events.
Legal Requirements for a Valid Will
A valid will must:
Be in writing.
Be signed by the testator on each page.
Be witnessed by at least two competent witnesses present at the same time.
Legal Authority
Wills Act 7 of 1953, Sections 2(1)(a) and 2(1)(b)
Case Law
Ex Parte Porter NO: In re Estate of MW Porter [2004] ZAWCHC 55
Frequently Asked Questions
What happens to my estate if I pass away without a will and have no living relatives?
If there are no living relatives, your estate becomes bona vacantia and passes to the state.
Do cohabiting partners have inheritance rights when one passes away without a will?
No, cohabiting partners are not recognized under intestate succession laws and do not automatically inherit.
How are debts handled when someone passes away without a will?
The executor settles all valid debts from the estate before distributing assets to heirs.
Can adopted children inherit if a parent passes away without a will?
Yes, adopted children have the same rights as biological children under the Children’s Act 38 of 2005.
Are stepchildren entitled to inherit when someone passes away without a will?
Stepchildren are not automatically entitled to inherit unless they were legally adopted.
What is the role of the executor in the absence of a will?
The executor administers the estate, settles debts, and distributes assets according to the Intestate Succession Act.
How can disputes among heirs be resolved?
Disputes can be mediated or, if necessary, resolved through legal proceedings under the guidance of the Administration of Estates Act 66 of 1965.
Is it possible to contest the distribution of an estate when someone passes away without a will?
Heirs can raise objections during the inspection period of the Liquidation and Distribution Account.
Do spouses in customary marriages have inheritance rights?
Yes, spouses in customary marriages recognized under the Recognition of Customary Marriages Act 120 of 1998 have inheritance rights.
How does the Maintenance of Surviving Spouses Act affect inheritance?
A surviving spouse may claim reasonable maintenance from the estate if they are not adequately provided for.
References
Intestate Succession Act 81 of 1987
Administration of Estates Act 66 of 1965
Maintenance of Surviving Spouses Act 27 of 1990
Wills Act 7 of 1953
Recognition of Customary Marriages Act 120 of 1998
Children’s Act 38 of 2005
Estate Duty Act 45 of 1955
Insolvency Act 24 of 1936
Income Tax Act 58 of 1962
Law of Evidence Amendment Act 45 of 1988
Case Law
Bhe and Others v Magistrate, Khayelitsha, and Others [2004] ZACC 17
Daniels v Campbell NO and Others [2004] ZACC 14
Volks NO v Robinson and Others [2005] ZACC 2
Wesley v Methodist Church of Southern Africa [2006] ZASCA 27
Ex Parte Porter NO: In re Estate of MW Porter [2004] ZAWCHC 55
Useful External Links
Master of the High Court: Administration of Estates
Legal Aid South Africa: Wills and Estates
If you would like to know more about estate planning, click here.
If you would like to know more about the post-nuptial execution of antenuptial contracts click here.
If you would like to know more about what can and cannot be governed in a will click here.
If you would like to know more about property transactions in deceased estates click here.
This article is for general informational purposes only and should not be used or relied upon as legal or professional advice. Meyer and Partners Attorneys Incorporated accepts no liability for any errors, omissions, losses, or damages arising from reliance on the information provided. For specific and detailed advice, please don’t hesitate to contact us at Meyer and Partners Attorneys Incorporated. Errors and omissions excepted (E&OE).