Legal Articles

If you die without leaving a will in South Africa, the rules of intestate succession will apply as stipulated in the Intestate Succession Act 81 of 1987.

Any person above the age of 16 is entitled to make a will which determines how his or her estate should be distributed upon death.

Rules of Intestate Succession – Dying Without a Will in South Africa

When a couple is married in community of property and one partner passes away, one half of the estate belongs to the surviving spouse.

Although this forms part of the joint estate, it will not be devolved according to the rules of intestate succession.

Finding of the Constitutional Court in the BHE Case

The BHE case which took place in 2004 challenged inheritance laws that automatically favoured the male population.

It recognised that customary law regarding succession what discriminatory on grounds of race, gender and birth.

The decision made by the constitutional court changed the way estates will be administered (according to the Administration of Estates Act) and distributed (according to the Intestate Succession Act) and the beneficiaries in order of preference are:

• The spouse of the deceased
• The descendants of the deceased
• The deceased’s parents only if the deceased dies without a surviving spouse or descendant
• The siblings of the deceased only if one or both parents are predeceased

In cases where the deceased was a husband in a polygamous customary union:

• When he left only spouses and no descendants, the surviving wives will inherit the estate in equal shares
• If he left spouses and descendants, the estate will be divided in equal shares, but the wives must inherit at least R250 000
• Should the estate not be enough to allow each wife to inherit R250 000, the spouses will inherit the estate in equal shares and the descendants will not inherit anything

After the BHE decision was made, all deceased estates will be administered in terms of the amended Administration of Estates Act which means that:

• Only the Master of the High Court will supervise and administer deceased estates
• The Master of the High Court does not have the power to administer estates on behalf of the beneficiaries and must appoint a suitable person to do so

Customary Law of Succession

Customary law of succession has not been abolished by the new regulations. Therefore, should a person wish to have his or her estate distributed according to customary law, this can be done by means of a will.

The Master of the High Court has a constitutional obligation to allow the family of the deceased to come to an agreement regarding the way in which the estate should be distributed.

However, the Master is under further obligation to protect vulnerable groups such as women and children from exploitation which may result from the family agreement.

For the purpose of intestate succession, the following individuals are regarded as spouses:

• In terms of the Marriage act 25 of 1961, any party to a valid civil marriage
• In terms of the Recognition of Customary Marriages Act 120 of 1998, any party in a subsisting customary marriage, including:
  • Marriages which were appropriately concluded before the Act came into force
  • Marriages which still existed at the time the Act commenced on the 15^th of November 2000
  • Marriages which were concluded in terms of the provisions of the Act after the commencement of the Act
• In terms of the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009, seed-bearing women in terms of Customary Law

In the Event of Instate Succession, What Happens if the:

• Only spouse(s) survive but not descendant(s)?

The spouse(s) will be the sole intestate heirs

• Only descendant(s) survive but no spouse(s)?

The descendant(s) will inherit the estate

• Descendant(s) and spouse(s) survive?

The spouse(s) will each inherit at least R250 000 before the balance of the estate is divided equally among the surviving children

• The deceased leaves no spouse(s) or descendant(s) but both parents are still alive?

The estate will be equally divided between both parents

• The deceased leaves no spouse(s) or descendant(s) but one parent and siblings of the deceased survive?

The surviving parent will inherit one half of the estate and the balance of the estate is divided equally between surviving siblings

• Only one parent of the deceased is still alive?

The surviving parent will inherit the whole estate

• Only the siblings of the deceased are still alive?

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

• The deceased does not leave a spouse or descendants or parents or descendants of his parents?

The nearest blood relation inherits the entire intestate estate

• There is no surviving relative?

The proceeds of the estate are devolved on the state

• A child of the deceased born out of wedlock survives?

Children born out of wedlock can inherit from both blood related parents as children born in wedlock

• An adopted child of the deceased survives?

An adopted child is considered a legal descendant of his or her adoptive parents and has the same inheritable rights as a biological descendant

Van Deventers & Van Deventers Incorporated – Probate Attorneys South Africa

For more information on the Intestate Succession Act or for legal assistance with setting up your will, please contact our attorneys in Cape Town and Johannesburg.