If you want your partner or spouse, children, and other close relatives to inherit your possessions and assets without any unnecessary delays, you must put your wishes in a will. Without a will, the law of intestate succession decides who inherits your estate. We take a look at what this law says, and what you must do to make sure that your assets go to the right people.
How the law of intestate succession works
A will is a written, legal, signed document that expresses your last wishes about who inherits from your estate, which includes your home, car, personal possessions, and any investments.
In a will, you can split up your assets as you choose – you can leave your spouse your home, your child an investment account and your brother your car.
If you don’t have a will, the law decides who gets what. This law is known as intestate succession. It aims to distribute your assets to your close relatives first.
It is important to note that these are formal relationships such as blood relatives, legally married or legally adopted. There is no provision for informal relationships such as a partner you live with, a child you care for, or a cousin you regard as family.
Let’s look in more detail at how it all works. Remember, this is what happens to your estate if you don’t have a will.
If you are married and have no children:
Your spouse will inherit 100% of your estate
Married means married according to law, including civil unions and customary marriages such as an African or Muslim marriage. Married does not mean a civil partnership. If you live together, no matter for how many years, the law will not automatically distribute your assets to your partner, they will go to your children or parents. This also applies to same sex partnerships where there is no civil union. The surviving partner can contest this, but it is time consuming, expensive and there is no guarantee the court will rule in favour of the surviving partner.
If you are married with children:
There are two scenarios here.
Your estate is worth less than R250 000: Your spouse inherits everything
Your estate is worth more than R250 000: Your spouse will inherit R250 000, or an equal share of the total value of the estate, whichever is greater.
To illustrate: If your estate is worth R400 000 and you have a spouse and one child, your spouse inherits R250 000 and your child R150 000.
If your estate is worth R600 000, your spouse and child each inherit R300 000.
You are not married but have children
Your children, including legally adopted children, inherit in equal shares.
You have no spouse or children
Your parents inherit in equal shares. If one of your parents has passed and you have a sibling, the parent and sibling will inherit equal shares.
You have no spouse, no children and no parents
Your siblings inherit in equal shares. The law refers to siblings as descendants of your parents – so siblings may include your half brothers and sisters, for example you have the same mother but different fathers.
If you have no spouse, children, parents or siblings
The nearest blood relative inherits. This could be a cousin or aunt, for example.
If you don’t have any blood relatives
Your estate will be left to the state.
The law of intestate succession may not suit your circumstances
Here are some reasons why.
If you don’t leave a will, your estate takes a long time to wind down (finalise the distribution of your assets to your heirs), which means your family could be left without funds for a few months at least.
You have no say in who gets what
Intestate succession is particularly problematic for partnerships which are not formalised. So if you have a partner you live with but are not married to and don’t leave a will, they may be left destitute. The same is true for extended family members you look after who are not blood relatives and are therefore not recognised by the law of intestate succession.
In addition, many of us want to leave our parents or brothers and sisters something. You can only make sure of this if you specify it in a will.
Your assets may be turned into cash
If your main asset is your home and you pass with no will, the home may be sold to turn your estate into cash to make it easier to distribute among your heirs. This can leave your family without a home.
Your minor children’s inheritance will be administered by the Guardian’s Fund
The law of intestate succession does not take into account the age of your children. If your children are younger than 18, their share will be administered by the Guardians Fund until they turn 18. This may limit the amount your child can use for education and general care until they reach 18 years.
In short – dying without leaving a will means a lot of administration for your heirs and family and may not benefit them as you would have wished.
A will is important
The law aims to be fair, but it can be slow to move and there are some scenarios where it can exclude someone from an inheritance that you would want to leave your estate to. So if you want to make sure those you love and care for inherit your assets, you must draw up a will.
How your heirs inherit with and without a will
In this example, George has two children, Sam and Thandi, with his partner Dina, who he lives with. Dina’s niece Rebecca lives with the family and they care and provide for her. George has a son, Vincent, with his previous partner, who he pays maintenance for.
George passes away. Look at what happens with vs without a will.
|George’s family||What they can inherit if George leaves a will, stating who gets what||What they will inherit if George has no will|
|Dina, his partner||Inherits his house, car and 50% of his investments, worth R100 000||Inherits nothing|
|Sam, Thandi and Vincent, his children||Inherit one quarter each of his remaining investments (R25 000 each)||Inherit equal shares from the sale of all George’s assets|
|Rebecca, Dina’s niece||Inherits one quarter of his remaining investments (R25 000)||Inherits nothing|