Intestacy

When someone dies without leaving a will

Source: Reader’s Digest’s You and Your Rights

A person who dies without leaving a will is said to die intestate - and his or her estate will be distributed in accordance with the rules of intestate succession.

These rules also apply to the sharing out of a deceased's property not specifically disposed of in a will. Moreover, if heirs who are mentioned in a will have died and there is no mention of any substitute heirs in that will, the rules of intestate succession will determine how the deceased estate should be distributed.

Who gets what is determined by the Intestate Succession Act, 1987. The Act provides for rules for distributing the estate in the following situations:

A SURVIVING SPOUSE AND NO DESCENDANTS If the person who dies leaves a spouse but no children, the spouse will inherit the entire estate.

A SURVIVING SPOUSE AND DESCENDANTS The surviving spouse (if married out of community of property) inherits a 'child's share' or up to R125000, whichever is the greater, while the descendants inherit the remainder. A surviving spouse married in community of property takes a half share in the joint estate plus a 'child's share' or R125000, whichever is the greater. A 'child's share' is calculated by dividing the monetary value of the estate (at the date of death) by the number of children, whether dead or alive, of the deceased, leaving surviving descendants, plus one.

Say the distributable amount from a deceased estate is R50000 and there are four children to take into account. The amount is then divided by 4 + 1 = 5. This results in a figure of R10000 which, in terms of the Act, is a child's share. To correctly calculate the number of children, the number of those that have died leaving descendants, as well as those still living must be taken into account.

DESCENDANTS BUT NO SURVIVING SPOUSE If the deceased leaves descendants, the estate will be divided equally among them. Subject to certain exceptions a child born out of wedlock may inherit upon intestacy from blood relations.

In terms of the Act, an adopted child is deemed to be a descendant of the adoptive parents and not the natural parents, except in certain circumstance such as where the natural parent is married to the adoptive parent. Similarly, the adoptive parents, not the natural parents, are deemed to be the child's ancestors.

The general principle is that a deceased person's estate will be divided equally among the various children. If one or more of the children have died before the deceased, each deceased child's children can take his or her place in the line and the deceased child's share will be divided equally among the deceased child's children.

The procedure by which children take the place of the deceased child can go through any number of generations.

NO SPOUSE OR DESCENDANTS BUT PARENTS ALIVE: If both parents are alive, each will get a half share of the intestate estate. If one parent is alive, he or she gets half, with the other half going to the descendants of the deceased parent.

If there is one surviving parent and no descendants of the deceased parent, the surviving parent inherits the whole of the estate.

NO SPOUSE, DESCENDANT OR PARENT BUT A BROTHER OR SISTER (or his or her descendants) alive In this case, half of the estate goes to the descendants of the deceased's mother (per stirpes) and the other half to the descendants (per stirpes) of the father. Per stirpes is where a deceased's child's heirs can inherit in his or her place.

This can continue through any number of future generations. Full brothers or sisters (or their descendants) therefore inherit through both parents while half-brothers or half-sisters (or their descendants) inherit through the parent common to them and the deceased (known in law as full hand and half hand).

If descendants of only one parent are alive, they will inherit the whole estate.

NO SPOUSE, DESCENDANT OR PARENT, BROTHER OR SISTER (OR HIS OR HER DESCENDANTS) ALIVE If none of the above are alive, the intestate estate will be divided equally among the nearest blood relations of the deceased.

IF THERE ARE NO SURVIVING RELATIVES If there is no surviving spouse and no blood relations, the estate is paid into the Guardians Fund of the Master of the Supreme Court and, if not claimed within 30 years, will be forfeited to the state.