Intestate Succession (dying without a will)

In South African law, it is possible to die wholly testate, wholly intestate, or partly testate and partly intestate.

Intestate succession applies if a deceased dies:

• Without leaving a will at all;

• Having executed a valid will which has subsequently become wholly or partly inoperative for some or other reason;

• With a valid will that fails to dispose of all the deceased’s assets;

• Leaving a document purporting to be a will, but which does not comply with the formalities for wills and is not condoned in terms of section 2(3) of the Wills Act 7 of 1953.

Only natural persons may inherit in terms of intestate succession.

Intestate succession follows a certain order. To see the order we have to look at section 1 of the Intestate Succession Act 81 of 1987.

Section 1(1)(a): spouse(s) survive deceased, but no descendants

Where a spouse survives the deceased, the spouse inherits the entire intestate estate. Where more than one spouse survives the deceased, the intestate estate is divided equally among all the spouses.

Section 1(1)(b): descendants survive deceased, but no spouse

Where descendants survive the deceased, the descendants inherit the entire intestate estate equally.

In terms of section 1(7) of the Intestate Succession Act, if a child of the deceased has predeceased the deceased, or is disqualified from inheriting, or renounces the inheritance, then the share (which that child would have received) passes equally to the descendants of that child. This is known as representation.

Section 1(1)(c): spouse(s) and descendants survive deceased

This one can get kind of complicated so let’s break it down.

Scenario 1: one spouse and descendants survive deceased

Where one spouse as well as descendants survive the deceased, the surviving spouse inherits whichever is the greater of either a child’s portion/child’s share or an amount fixed from time to time by the Minster of Justice and Constitutional Development. Currently this amount is R 250 000.00. The descendants inherit the residue of the intestate estate (if any).

To calculate a child’s share you divide the deceased’s estate by the number of children who have either survived him/her, or who have predeceased him/her but have left descendants of their own, plus the number of surviving spouses.

Where the spouses were married in community of property or under the accrual system, the surviving spouse’s share of the joint estate or accrual share does not form part of the intestate estate of the deceased. The amount to which the surviving spouse is entitled is deducted first.

Scenario 2: deceased survived by more than one spouse

Where more than one spouse survives the deceased, each spouse inherits whichever is the greater of a child’s share or the amount the Minister fixes from time to time. The descendants will inherit the residue of the intestate estate (if any).

Section 1(1)(d)(i): both parents survive the deceased, but no spouse or descendants

Where both parents survive the deceased, but no spouse or descendants survive, they inherit the intestate estate in equal shares.

Section 1(1)(d)(ii): one parent and the descendants of the other parent survive the deceased

Where no spouse or descendants survive the deceased, but one parent does as well as the descendants of the predeceased parent, the surviving parent inherits one half of the intestate estate and the descendants of the deceased parent the other half. If the surviving spouse has no descendants, the surviving parent inherits the entire estate.

Section 1(1)(e)(i)(aa): descendants of parents survive deceased but no spouse, descendants or parents

Where no spouse, descendants, or parents survive the deceased, but the descendants of his/her parents do, the intestate estate is divided into halves. Each half goes to the descendants of one of the parents. In other words, one half goes to the descendants of the father and one half goes to the descendants of the mother. Where the descendants are from both parents, the will inherit from each half. Where a descendant is only from one descendant (half brother or sister) he/she will only inherit from his/her parent’s half.

Section 1(1)(e)(ii): descendants of one parent only survive deceased

If no spouse, descendants or parents survive the deceased, and only one of his predeceased parents has left descendants, those descendants are the sole heirs.

Section 1(1)(f): further relations survive the deceased

Where no spouse, descendants, parents or descendants of parents survive the deceased, the nearest blood relative inherits.

Disqualification and repudiation

In terms of section 1(7) of the Intestate Succession Act, if a person is disqualified from being an intestate heir of the deceased or repudiates (renounces) an inheritance, the benefit which that heir would have received devolves as if the heir had died immediately before the deceased died. In other words, the heir is deemed to have predeceased the deceased. If the disqualified or repudiating heir has descendants, they will inherit by representation. If the disqualifying or repudiating heir does not have descendants, the inheritance will go to the other heirs of the deceased according to the principles of intestate succession.

Section 1(7) must be read with section 1(6) which states that if an intestate heir of the deceased repudiates and is survived by a spouse, the surviving spouse will inherit the repudiating heir’s inheritance. This only applies where an heir repudiates and not where an heir is disqualified.