If I don’t have a Will, who will inherit my property?

Private Property South Africa
Snymans Incorporated

The different scenarios that exist with regards to deceased estates and subsequent inheritance.

Inheritance of assets in a deceased estate, and in particular of immovable property, can be complex. Although there are many nuanced scenarios that can exist when it comes to deceased estates and subsequent inheritance, there are two broad possibilities, each of which is dealt with quite differently in terms of the law.

The first of these is inheritance based on a Testament/Will. For a Will to be valid, it should conform with the requirements of the Administration of Estates Act (act 66 of 1965). Where such a Will has been drawn up, there will be clear direction as to who should inherit from the deceased estate and in what proportions, and these decisions are entirely at the discretion of the individual making the Will (also known as the Testator). The Will or Testament will be administered by an executor who is appointed either in the Will or by the Master of the High Court. The executor will be responsible for administering the Testament and finalising the estate according to the terms set out in the Will.

The second scenario that is possible, where no valid Will was created by the deceased, is inheritance based on Intestate Succession. Deceased estates where no Will has been drawn up are dealt with under the Intestate Successions Act (81 of 1987). This act makes provision for a number of rules that will apply to determine inheritance when an individual dies without a Testament. There are nine such rules and each takes into consideration a varying family structure of the deceased and stipulates which of the surviving relatives stands to inherit and in what share.

These rules are aimed at providing an equitable disposition of property in terms of family structures. For example, if an individual passes away and has no surviving spouse but has two remaining children, these children will inherit the complete net estate assets in equal shares. Should this estate include fixed property, such as a house, the two surviving children will become co-owners of the property in equal shares.

Whether a deceased estate is dealt with in terms of a Testament or the rules of Intestate Succession, it must be reported to the Master of the High Court who will govern the process and ensure the executors of the Will finalise the estate effectively.

The measures in place for Intestate Succession (where no Will has been created) can effectively manage the process of dissolving the deceased estate. It is, however, always advisable to draw up a valid Will to ensure that an estate is distributed in the way in which an individual wishes.

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