INTESTATE SUCCESSION

Even though the vast majority of people these days have a valid will it unfortunately still happens that some people pass away without ever having executed a will. The estates of persons who fall in the latter group necessarily still require winding up and the rules of intestate succession will determine the devolution of their estates.

“Intestate succession” therefore refers to the manner in which a deceased’s estate devolves when: –

1. the deceased has failed to determine how his/her property must be awarded by will or

2. where it is impossible to carry out the terms of the deceased’s will due to, for example, all of the beneficiaries under the will having predeceased the testator.

In South Africa intestate succession is governed by the Intestate Succession Act 81 of 1987. The Act came into operation on 18 March 1988 and accordingly it applies to the estates of persons who died intestate on or after that date.

A person may die completely intestate or only partially intestate. Partial intestate succession would take place when a testator specially bequeathed only a portion of his/her estate in a valid will and omitted to deal with the remainder of his/her estate. The portion of the estate bequeathed by will, would then devolve according to the terms of the will and the remainder of the estate would devolve according to the rules of intestate succession.

Intestate succession is based primarily on blood relationship since the Act was drafted under the presumption that an ordinary person would want his/her spouse and children to benefit from his/her accumulation of worldly goods. Therefore, the rules of intestate succession ensure an equitable distribution of a deceased’s estate amongst his/her blood relations.

However, the distribution method according to intestate succession is often inadequate for most people, particularly in the case of previous relationships and especially where there are children involved.  For example, the Act does not provide for inheritance rights on the part of step-children.

Furthermore, every person (and especially those with complex or valuable estate portfolios) should most definitely rather ensure that he/she has a valid will, that had been drafted to ensure maximum estate duty and possible other tax benefits, in place.

The following is a basic outline of how a deceased’s estate would devolve intestate under various circumstances (keep in mind that illegitimacy does not affect the capacity of a blood relation to inherit and an adopted child is considered a descendant of his/her adoptive parents):

1. If the deceased is survived by a spouse and no descendants, the spouse will inherit the entire estate. (If the deceased was a husband in a polygamous marriage the surviving spouses will inherit the entire estate in equal shares.) Remember that in the case of a marriage in community of property, one half of the estate belongs to the surviving spouse and, although it forms part of the joint estate, it will not devolve according to the rules of intestate succession.

2. If the deceased is survived by descendants but not by a spouse, the descendants will inherit the entire estate in equal shares. Where there is a living spouse or spouses and descendants, each spouse will inherit R125 000 or a child’s share, whichever is greater. The children will inherit the balance of the estate in equal shares. (The amount of R125 000 may be adjusted by the Minister of Justice from time to time, and a child’s share is determined by dividing the estate by the number of surviving children of the deceased as well as predeceased children who have left issue, plus the number of surviving spouses.)

3. If the deceased is not survived by a spouse or descendants, but by both parents, the parents will inherit the entire estate in equal shares.

If the deceased has no surviving spouse(s) or descendants and only one surviving parent, then that parent will inherit half of the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent will inherit the entire estate.

4. If the deceased is not survived by a spouse, descendant or parent the estate will be split into equal parts. One half of the estate is then divided among the descendants related to the deceased through the predeceased mother and the other half among the descendants related to the deceased through the predeceased father.

5. If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, then the blood relations of the deceased who are related to him/her nearest in degree will inherit the estate in equal shares.

6. Only when no relatives of the deceased can be traced and once the estate has not been claimed by a legitimate heir for a period of 30 years, will it be forfeited to the State.