If you die without a will in South Africa, your family does not simply decide who gets your assets.
The law does.
When someone dies without a valid will, their estate is distributed according to the rules of intestate succession under the Intestate Succession Act 81 of 1987. That does not mean everything automatically goes to the government. It means the law determines who can inherit and how the estate is distributed based on the deceased person’s family circumstances.
And that can be very different from what you would have chosen yourself.
So, if you have ever thought, “My family will know what I wanted,” this is worth understanding.
What does intestate succession mean?
Intestate succession simply means that a person has died without leaving a valid will.
Instead of distributing the estate according to the deceased person’s instructions, the estate is distributed according to the rules set out in South African law.
A deceased estate includes the assets and liabilities a person had at the time of their death. The estate must first be administered before the remaining assets can be distributed to the people legally entitled to inherit.
So there are really two separate questions:
Who is legally entitled to inherit?
And:
How does the estate get from the deceased person to those heirs?
Both matter.
A will is not about expecting something bad to happen. It is about making decisions while you are here, instead of leaving your family and the law to make them after you are gone.
PM Attorneys can help you put a proper plan in place.
Who inherits if you die without a will in South Africa?
The answer depends on who survives you.
Under the rules of intestate succession, the order of inheritance generally starts with the deceased person’s spouse or spouses and descendants, followed by other relatives where there is no surviving spouse or descendant.
This means there is no single answer to:
“Who gets my estate if I die without a will?”
It depends on your family structure.
If you leave a spouse but no children
Your surviving spouse or spouses may inherit the estate as the sole intestate heirs.
If you leave children but no spouse
Your descendants may inherit the intestate estate.
If you leave both a spouse and children
The estate is divided according to the intestate succession rules.
The surviving spouse or spouses receive the greater of the prescribed amount or a child’s share, while the descendants receive the balance according to the applicable rules. The calculation can become more complicated where there are multiple spouses or other family circumstances.
What if there is no spouse or child?
The law provides further rules for surviving parents, descendants of predeceased parents and other relatives.
Only where a person has no qualifying relatives does the estate ultimately devolve on the state.
So the idea that “if I die without a will, the government gets everything” is generally incorrect.
The bigger issue is that you lose the ability to personally decide how your estate should be distributed through your will.
What happens to your estate without a will?
A deceased estate does not simply get divided up by the family.
It must be administered.
The estate administration process involves identifying the deceased person’s assets and liabilities, dealing with debts and then distributing what remains to the people entitled to inherit.
The estate must be reported to the relevant Master of the High Court, and the required documentation depends on the circumstances of the estate. Where there is no valid will, documentation such as a Next-of-Kin Affidavit may be required.
Someone must then be appointed to administer the estate.
Where there is no will, there is obviously no executor nominated by the deceased.
The heirs may therefore need to nominate someone for appointment, subject to the Master’s requirements.
This is one of the practical differences between having a properly prepared will and leaving your family to deal with an intestate estate.
What happens to your house and other property?
Your property does not simply go to the person who lives in it.
A house, land, vehicle, investments and other assets form part of the deceased estate and are dealt with according to the applicable succession and estate-administration rules.
The first step is therefore not:
“Who gets the house?”
It is:
“Who is legally entitled to inherit from this estate, and how should the estate be administered?”
There may also be outstanding bonds, debts, ownership arrangements or other legal considerations affecting a property.
This is particularly important for families where the deceased owned a home jointly with someone else, owned several properties, or had significant financial obligations.
If you are dealing with a deceased estate in South Africa and are unsure what happens to a property, it is worth getting legal advice before family members make informal arrangements between themselves.
What happens to minor children and their inheritance?
This is one of the areas where dying without a will in South Africa can create additional complications.
A child can inherit from a deceased parent, including where the estate is administered under intestate succession.
But a minor child cannot simply take control of an inheritance in the same way an adult beneficiary can.
The Master of the High Court explains that money belonging to a minor may be administered through the Guardian’s Fund, depending on the circumstances.
This is why parents should think beyond:
“My children will inherit everything.”
Good will planning asks a more useful question:
“How should my children’s inheritance be managed if I am no longer here?”
A properly planned will can address matters such as the management of an inheritance intended for a minor and, where appropriate, arrangements involving a trust. The Master specifically advises people drafting wills to consider what should happen to a minor beneficiary’s inheritance.
What if you have a complicated family structure?
Your circumstances may involve:
- A spouse and children from a previous relationship
- More than one recognised spouse
- Adopted children
- Children born outside of marriage
- A customary marriage
- A blended family
- Stepchildren
- Family members who depend financially on you
- A family business
- Property owned with other people
South African intestate succession law makes provision for a range of family circumstances, including spouses in recognised customary marriages and children born outside of marriage.
But the fact that the law provides rules does not mean those rules will necessarily produce the outcome you would have chosen.
That is the difference between letting the law decide and planning yourself.
Who administers an estate when there is no will?
When someone dies without a valid will, there is no nominated executor appointed by the deceased.
The heirs may nominate a person to be considered for appointment, and the Master of the High Court oversees the appointment and administration process.
The person administering the estate must deal with the legal and administrative requirements involved in settling the deceased estate.
That can include:
- Identifying the deceased’s assets
- Identifying liabilities and creditors
- Dealing with the necessary documentation
- Administering the estate
- Preparing the required accounts
- Distributing the estate to the rightful heirs
The complexity depends on the estate.
A straightforward estate may be relatively manageable. An estate involving property, businesses, multiple beneficiaries, minor children or disputes can require considerably more work.
Why can an intestate estate become complicated?
The problem is not always the absence of a will itself.
It is everything that comes with trying to work out what happens next.
For example, family members may disagree about:
- Who should administer the estate
- Which assets belong to the estate
- The value of particular assets
- How property should be dealt with
- Whether someone qualifies as an heir
- How an inheritance should be divided
- What happens to a minor’s inheritance
There may also be missing documents, unknown debts, property that has not been properly registered, or questions about the deceased person’s marital status.
And unlike a will, where the deceased can clearly set out their wishes, an intestate estate starts with the legal rules rather than the deceased person’s instructions.
What should you do if a family member has died without a will?
If you are currently dealing with a deceased estate in South Africa and the person died without a valid will, the first step is not to start dividing the assets between family members.
The estate needs to be properly reported and administered.
You may need to establish:
- What assets and liabilities the deceased left behind.
- Whether there is genuinely no valid will.
- Who the surviving spouse or spouses and descendants are.
- Whether there are minor heirs.
- What documentation is available.
- Who should be nominated to administer the estate.
- Which Master of the High Court has jurisdiction.
The Master’s Office provides specific documentation requirements for reporting estates, and the process can differ depending on the value and circumstances of the estate.
If the estate involves property, multiple heirs, minor beneficiaries, a complicated family structure or a disagreement between family members, getting legal assistance early can prevent the situation from becoming unnecessarily difficult.
PM Attorneys can help with wills and deceased estates
You cannot change the fact that someone has died without a will.
But you can make sure the estate is dealt with properly from this point forward.
PM Attorneys assists clients with matters involving:
- Wills and estate planning
- Drafting and reviewing wills
- Trusts and trust registration
- Deceased estate administration
- Reporting deceased estates
- Estate-related disputes and legal issues
If you are dealing with a family member’s estate after they died without a valid will, we can help you understand the process, identify what needs to be dealt with and assist with the legal administration of the estate.
And if you are reading this because you have realised you don’t have a will, that is an even easier problem to address.
You can still make one.
Frequently asked questions
What happens if you die without a will in South Africa?
Your estate is distributed according to the rules of intestate succession under the Intestate Succession Act 81 of 1987. Who inherits depends on your surviving family members and circumstances.
Does the government get your money if you die without a will?
Not normally. If you die without a will, the estate is distributed according to the rules of intestate succession. Only where there are no qualifying relatives does the estate ultimately devolve on the state.
Does my spouse automatically get everything if I die without a will?
Not necessarily. If you leave both a spouse and descendants, the intestate succession rules determine how the estate is divided. The calculation can depend on the number of spouses and descendants involved.
What happens to my children if I die without a will?
Your children may inherit under intestate succession rules. If a minor inherits, additional arrangements may apply to managing that inheritance, including possible administration through the Guardian’s Fund.
What happens if the original will is lost?
The Master states that a certified copy cannot simply replace the original. Depending on the circumstances, a High Court application may be required for a copy to be accepted as a valid will.
If you do not have a will, or your existing will no longer reflects your life, PM Attorneys can help you review your options and put an appropriate estate plan in place.
