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.
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.
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:
In cases where the deceased was a husband in a polygamous customary union:
After the BHE decision was made, all deceased estates will be administered in terms of the amended Administration of Estates Act which means that:
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:
The spouse(s) will be the sole intestate heirs
The descendant(s) will inherit the estate
The spouse(s) will each inherit at least R250 000 before the balance of the estate is divided equally among the surviving children
The estate will be equally divided between both parents
The surviving parent will inherit one half of the estate and the balance of the estate is divided equally between surviving siblings
The surviving parent will inherit the whole estate
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 nearest blood relation inherits the entire intestate estate
The proceeds of the estate are devolved on the state
Children born out of wedlock can inherit from both blood related parents as children born in wedlock
An adopted child is considered a legal descendant of his or her adoptive parents and has the same inheritable rights as a biological descendant
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.
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