Dying Without a Will, What Will Happen?
No one likes to think about dying without a will, but for many South Africans it happens by accident rather than by choice. If you die intestate, meaning without a valid will, your estate does not disappear into thin air.
It is distributed according to a fixed legal formula, and that formula may look nothing like what you would have chosen yourself.
The Intestate Succession Act Takes Over
When there is no valid will, the Intestate Succession Act determines who inherits and in what share. Spouses and children usually inherit first, followed by parents and siblings if there is no immediate family. The Act does not take personal relationships, verbal promises, or unmarried partners into account.
Our wills and estate planning attorneys often see families surprised by how differently the law divides an estate compared with what the deceased actually wanted.
Your Estate Is Still Frozen
Dying intestate does not speed anything up. The estate is frozen the moment you die, and no one, not even a spouse, may access the bank accounts or sell assets until someone has been formally appointed to administer the estate.
Families are often surprised to learn that even household expenses can be difficult to access in the meantime.
No Executor Means the Family Must Nominate One
Without a will naming an executor, the Master of the High Court appoints someone based on the family’s nomination, usually the surviving spouse or the majority of the heirs. This can create delay and disagreement, particularly in blended families or where relationships between heirs are already strained.
Minor Children and the Guardian’s Fund
If a beneficiary is a minor, their inheritance does not go straight to them. It is paid into the state-administered Guardian’s Fund and held until they turn 18, rather than being placed in a structure you design yourself, of the kind we cover in our guide on how to register a trust in South Africa.
Many parents are unaware of this until it is too late to change.
Common Mistakes That Lead to This Outcome
Many of the estates that end up under intestate succession were never meant to. An outdated will, one that was never signed correctly, or simply never getting around to drafting one in the first place, are among the most common mistakes in wills and estate planning that we see.
Intestate estates can also attract estate duty in the same way as estates with a valid will, a point SARS addresses in its guidance on the subject.
Protect Your Family With a Valid Will
The good news is that this outcome is entirely avoidable. Speaking to our commercial and trust law specialists early, alongside drafting a valid will, can prevent your estate from ever reaching this point and ensure your assets go where you actually want them to.
Our attorneys have helped many South African families draft valid, legally sound wills, and are ready to help you do the same. CONTACT US today.