No Will, who will inherit my property?

When someone passes away without a legal Will, distributing their property and assets can become complex.

September 11, 2023

When someone dies and leaves behind property or assets (in the form of inheritance), it can get complicated, especially if they didn't leave a legal Will to say who should receive their belongings.

Although there are many scenarios when it comes to deceased estates and subsequent inheritance, there are two broad possibilities, each of which is dealt with quite differently in terms of South African law:

● The first possibility is inheritance based on a valid Will, left by the deceased;

● The second, inheritance based on Intestate Succession.    

Let’s discuss the first option, inheritance based on a valid Will, left by the deceased.  

In order for a Will to be valid, it needs to meet the requirements of the Administration of Estates Act (Act 66 of 1965).  When it is drawn up and legally signed, it will clearly confirm who will inherit, what they will inherit and the proportions thereof, as confirmed by the executor (also appointed and named in the Will).       

The deceased estate will be administered by an executor, who is usually appointed in the Will or by the Master of the High Court, if no executor was appointed, or in the situation where the nominated executor did not accept the nomination.   The executor is responsible for the administration and finalisation of the estate, according to the terms set out in the Will.  

The second scenario is where no valid Will was created by the deceased, and the inheritance is based on Intestate Succession.  

A deceased estate is administered in terms of the Intestate Succession Act (Act 81 of 1987), where the deceased did not leave a Will or the Will is declared invalid.        

The act makes provision for rules which will apply to determine who will inherit from the deceased estate, in the situation where no valid Will was left by the deceased.  There are nine rules, and each takes into consideration a varying family structure of the deceased, and stipulates which of the surviving relatives stands to inherit, and in what share.  

These rules are aimed at providing an equitable disposition of property, in terms of family structures.  For example, if an individual passes away and has no surviving spouse but has two remaining children, then these children will inherit the assets in equal shares (after liabilities have been paid).  Should the estate include immovable property, such as a house, then the two surviving children will become co-owners of the property in equal shares.  

In both cases, the deceased person's estate needs to be reported to the Master of the High Court, who makes sure the process is done properly, and that the executor/s of the estate finalises the estate effectively.

The measures in place for Intestate Succession can effectively manage the process of dissolving the deceased estate.  It is, however, always advisable to draw up a valid Will to ensure that an estate is distributed in the way in which an individual wishes.  

Rewritten and updated by Jean-Mari De Beer-le Grange

Moderated and approved by Clive Smith

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