Passing Away without a Will

Individuals aged 16 and above have the freedom to create a will to specify the distribution of their estate upon their death. This will serves as the blueprint for the deceased’s final wishes and instructions.

There are specific requirements a Will must comply with which are regulated by the Wills Act 7 of 1953.

  • The requirements for a valid Will are as follows:
    • A person must be over the age of 16 (sixteen) years.
    • The Will must be in writing. This means that a Will can by typed or handwritten. If the Will is handwritten, it must be remembered that the person who writes the Will is not allowed to be mentioned as a beneficiary in that specific Will.
    • Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older.

Having a will in place not only ensures that the dignity of the deceased is upheld in the distribution of assets but should provide the framework for timely winding up of the estate.

If you pass away without a valid will, your estate will be distributed according to the rules of intestate succession outlined in the Intestate Succession Act (Act 81 of 1987).

All deceased estates will be distributed in terms of the Intestate Succession Act. This means that the beneficiaries in order of preference are:

  • The spouse of the deceased
  • The descendants of the deceased
  • The parents of the deceased (Only if the deceased died without surviving spouse or descendants)
  • The siblings of the deceased (Only if one or both parents are predeceased)The Intestate Succession Act should be read in such a way that it can accommodate cases where the deceased was a husband in polygamous customary union:
  • When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.
  • When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but
  • Each wife should inherit at least R 250 000
  • When the estate is not large enough to allow each wife to inherit
  • R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

It’s clear in the above that conflict may arise between beneficiaries and although the Act is there to help, there are many moving parts that can complicate the winding up of the estate. A valid will is the only way to avoid distribution in terms of the Intestate Succession Act.

Ruvan J Grobler RFP™

Sources: 2024/04/03, Department of Justice and Constitutional Development, South Africa,
Photo by Melinda Gimpel on Unsplash

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