If you pass away without having a valid will, you die wholly intestate. This means the Intestate Succession Act comes into operation, and the distribution of your whole estate will be made according to the provisions of this Act.

It is also possible for your estate to devolve partially testate and partially intestate. This can occur if, for example, some of the provisions in your will are unclear or impossible to carry out or if your will does not provide for the devolution of all your assets.

To see which people will inherit in terms of the Intestate Succession Act, click here.

If you pass away without having a valid will, you die wholly intestate. This means the Intestate Succession Act comes into operation, and the distribution of your whole estate will be made according to the provisions of this Act. The act is short, simple and has been around since 1987.

The provisions of the act is very fair and the majority of South Africans die intestate.

There are however many benefits to having a valid will in place:

• You can dispose of your entire estate as you please.
• You can bequeath to heirs as much as you may want or according to the needs of your heirs. If you have for example adult self-sufficient children who does not need an inheritance and you would rather want to make sure your surviving spouse has enough after your passing, you can bequeath your entire estate to your spouse.
• If you want to make a bequest to a friend or to a charitable institution such as the SPCA, you can.
• If you dislike someone, you can disinherit them at a whim.
• You can make provision for predeceased heirs by nominating alternative heirs.
• You can make provision for insolvent heirs or heirs that are physically or mentally unable to manage their own affairs, by providing that their inheritance must be administered on their behalf in trust.
• You can make provision that any bequest to an heir, will not be subject to their matrimonial property regime.
• You can attach lawful conditions to the bequests and your heir is obliged to abide by the conditions if he wants his inheritance. A typical example is when assets are bequeathed to a surviving spouse, subject to them relinquishing any matrimonial or maintenance claim they might have against your estate.
• Should you have a sizeable estate, you may want to structure your will and your estate in such a way as to ensure you pay the least amount of Estate Duty to SARS, executor’s fees and other expenditure.
• You may also want to ensure that there is sufficient cash in your estate to pay for these taxes and expenditure.
• If you have minor children, you will want to nominate guardians to care for them after your passing.
• Additionally, because minors are not allowed to receive cash bequests, you may also want to make provision for a testamentary trust, to administer their inheritance on their behalf until they reach the age of majority or even any other age of your choosing. If you do not make provision for a testamentary trust, their inheritances may have to be paid over to the guardian’s fund, a state institution, that will manage it on their behalf.
• You can nominate an executor that you know and trust and determine which powers he will have and if he will be required to provide security for the due performance of his duties.
• You can already negotiate for a fee reduction with your nominated executor and have it noted it in your will.
• You may be in the middle of an acrimonious and lengthy divorce and want to ensure that your current spouse does not inherit from you.

A will is a dynamic document that should be continuously evaluated at each big life event, such as:

• If you have recently gotten married, you should make provision for your new spouse.
• If you have recently gotten divorced, you should update your will. For the first three months after the dissolution of your marriage, a previous spouse will be considered predeceased and will not be allowed to inherit from your estate.
• If you have welcomed a new child into the family. Parents should make provision for guardians in the event of their simultaneous deaths. Unless the will stipulates otherwise, cash bequests to minors will have to be paid over and administered on their behalf by the Master’s Guardian’s fund, until the heirs turn 18 years of age. Parents should therefore make provision for a trust, if they so wish.

A person may refuse medical treatment, even if it may cause harm or hasten his death. However, in order to refuse treatment, you must have the physical and mental capacity to do so.

A living will is therefore your declaration, at a time when you are physically and mentally able to declare, that should the time come, you do not want to be kept alive by artificial means and/or you want to receive pain relief, even if it hastens your death.

The precise legal status in South Africa of a living will is still unclear, but practically, attending doctors will, if there is no reasonable prospect of recovery, honour the wishes expressed by your next-of-kin and your living will.

South Africa does not have a central repository/registry where wills are kept on behalf of people not yet deceased.  You will need to ensure your will is safely kept.

Your original signed will is an important document and will need to be submitted to the Master when you pass away. Should it be destroyed or go missing, a copy cannot be used without first obtaining a court order. This will be timeous and an unnecessary expense for your next-of-kin. We suggest signing more than one duplicate original and keeping it at separate locations, such as one at your home and one at the office of your attorney. Provide your next-of-kin with your attorney’s details so that they can make contact with your attorney, upon your passing.

• Any competent person, 16 years or older, can execute his or her own will.
• The will must be printed and signed in an original hard copy format. It cannot be made by way of a video or sound recording. A photocopy will also not suffice.
• You must sign each page and sign at the end the document.
• It must be signed in the presence of two competent witnesses, aged 14 or older. Preferably independent witnesses, to ensure they are not disqualified from inheriting in terms of the will. You may also acknowledge your signature to two competent witnesses. Both witnesses must also sign the last page as confirmation of your signature. Although they are only required to sign the last page, it is advisable to have them also sign all the other pages for evidentiary purposes and to make sure that if one page goes missing, the remaining pages may still constitute a valid will.
• An initial will be treated the same as a full signature.
• If a will is signed by means of the making of a cross, thumb print, rubber stamp, or signed by another person on the testator’s behalf, then a commissioner of oaths must be present at the signature thereof and certify that he is satisfied of the identity of the testator and that it is indeed the will of the testator.
• It is not a requirement to have the will dated, but it is important to have it done, so that your last will can be easily identified.
• If a will is written out by hand on a piece of paper, the person who wrote it out, or any part of it, will be disqualified from inheriting. So it is advisable to type out and print the will or if it has to be written out by hand, the testator himself or an independent third party must do the writing.

An Executor is the person who will be responsible for the administration of your deceased estate. He will take control of your assets, settle your debt, finalise your tax and other affairs and distribute the remainder to your heirs. Therefore, choose a trustworthy executor with the necessary expertise so that he is properly equipped to administer your deceased estate. You have two options:

• You can nominate your surviving spouse or a family member or friend to be the executor of your estate.

The positives are – You know your executor is trustworthy, your executor can shop around for an attorney to assist, often negotiating fee reductions. Should an issue arise, your executor can dismiss the agent and appoint a new agent, relatively easily.

The negatives are –  They do not have the necessary experience and skill to administer your estate, necessitating the appointment of an agent. The more people involved in the administration process the more paperwork it entails. With the rise in FICA compliance and fraud, both the executor and the agent will have to provide fica documentation. Your surviving spouse or family member or friend may not want the additional hassle of attending to the administration of your estate.

• You can nominate a trusted family attorney.

The positives are – You pick an attorney you know and trust and they are already acquainted with your personal affairs. They also have the necessary experience and skill to administer your estate. The administration process will be easier because it involves less paperwork.

The negatives are – If you do not negotiate a fee reduction when your will is drafted, your next-of-kin may less likely be able to negotiate a reduction after your passing.

An executor is entitled to the following remuneration for administering your deceased estate:

• If you have fixed in your will, the amount of remuneration that your executor is entitled to receive, your executor is entitled to that amount alone. You can therefore negotiate a fee reduction, or even increase, with your nominated executor, when you draft your will. Have them note the negotiated fee in you will.
• If your will does not fix the amount of remuneration, then your executor is entitled to receive remuneration according to the prescribed tariffs. This is currently 3.5% on the gross value of assets and 6% on income collected after your death.
• In special cases, the master may reduce or increase the remuneration subject to the facts of the case.
• If the executor is VAT registered, he is obliged to charge VAT on his remuneration.
• If the executor, in addition to the work in the ordinary scope of an executor, also performs other duties, such as transferring immovable property or litigating on behalf of the estate, these fees can also be charged, such as conveyancing fees and litigation costs.

Adoption means the child has been placed in the permanent care of a person in terms of a court order and not just merely taken in and looked after.

• A child is biologically linked to the blood relations of his biological parents. That link makes him an intestate heir to both his biological father and biological mother’s blood relations.
• When adopted, the link that the child has to the blood relations of his biological family is extinguished. He is no longer an intestate heir to his biological bloodline. He will only still be linked to his biological blood relations if one of his biological parents also adopted him or was married to his adoptive parent at the time of the adoption.
• A new legal link is created between the adopted child and the blood relations of his adopted parent(s). The child is now an intestate heir of his new family.

Take note of this example:

A father passes away and the mother remarries. The stepfather formally adopts the child. The grandparents on the biological father’s side, want to make a bequest to their grandchildren and specifies in their will that:

“our entire estate will devolve upon our grandchildren, in equal shares.”

The grandparents have unknowingly excluded their late son’s child, because the adopted child is no longer legally regarded as part of the grandparents’ blood line. The child can no longer inherit intestate from them and will no longer form part of the group/class of persons of grandchildren in that bloodline. The grandparents will therefore need to amend their will and specify the bequest to the child, by name.

If you die insolvent, meaning you have more liabilities than assets, then your assets will be sold and your creditors will receive all the proceeds thereof to pay off a pro-rata portion of what is owing to them. The creditors will write off the rest. No debt will pass on to your heirs. Nothing will remain of your estate to devolve upon your heirs.  

In some instances, should  your heirs choose to and also if your creditors consent, debt may pass over to your heirs.

Example:

Jack passes away with a house and a mortgage with a significant portion still outstanding. If his surviving spouse is to inherit his whole estate, unless his will specifies otherwise, she will have the option to:

• have the house sold to settle the mortgage and she will receive the remainder of the funds left over, if any, or
• inherit the house and take over the mortgage bond in her own name. (subject to the bank’s consent). This way she can keep the house.

Please contact us for any other queries you may have.