If you do not leave a will

© 2012 Department of Justice and Constitutional Development

Any person of 16 years and over is free to make a will in order to determine how his/her estate should devolve upon his/her death.

If you die without a will, your estate will devolve in terms of the rules of intestate succession (your assets will, contrary to general belief, not go to the state).

What is said hereunder is not meant to replace the provisions of the Intestate Succession Act, no. 81 of 1987. The information is merely to inform the user of this site about some of the basic questions asked about intestate succession. Click on the topics below for more information as to how the intestate estate will devolve.

·       Deceased is survived by a spouse or spouses, but not by a descendant/s.
The spouse or spouses will inherit the intestate estate. In the case where the deceased was a husband in a polygamous marriage the surviving spouses will inherit in equal shares.

·       Deceased is survived by a descendant/s, but not by a spouse.
The descendant or descendants will inherit the intestate estate.

·       Deceased is survived by a spouse or spouses, as well as a descendant/s.
Each spouse will inherit R125 000,00 or a child's share, whichever is the greater and the children the balance of the estate. A child share is determined by dividing the intestate estate through the number of surviving children of the deceased and deceased children who have left issue, plus the number of spouses who have survived such deceased.

NOTE: In case of a marriage in community of property, one half of the estate belongs to the surviving spouse or spouses and, although it forms part of the joint estate, will not devolve according to the rules of intestate succession. For more information on the Intestate Succession Act, no. 81 of 1987 please consult the act or your legal representative.
The following two examples will illustrate what is said above about the child's share:

Example 1:
Value of intestate estate is R425 000,00
The deceased is survived by a spouse and 3 children
A child's share amounts to R106 250,00 (R425 000,00 divided by 4 (3 children plus spouse)).
The child's share is less than R125 000,00. Therefore, the spouse will inherit R125 000,00 and each child will inherit R100 000,00. (R425 000,00 less R125 000,00 to spouse, divided by 3).

Example 2:
Value of intestate estate is R800 000,00.

The deceased is survived by a spouse and 3 children.

A child's share amounts to R200 000,00 (R800 000,00 divided by 4 (3 children plus spouse)).

The child's share is greater than R125 000,00. Therefore, the spouse will inherit R200 000,00 and each child will also inherit R200 000,00 (R800 000,00 less R200 000,00 to spouse, divided by 3).

·       Deceased leaves no spouse or descendants, but both parents who are alive.
His/her parents will inherit the intestate estate in equal shares.

·       Deceased leaves no spouse and no descendants but leaves one parent, while the deceased parent left descendants (brothers/sisters of the deceased).
The surviving parent will inherit one half of the intestate estate and the descendants of the deceased parent the other half.

·       Deceased leaves no spouse or descendants but leaves one surviving parent, while the deceased parent did not leave any other descendants.
The surviving parent will inherit the whole estate.

·       Deceased does not leave a spouse or descendants or parents, but both his parents left descendants.
The intestate estate will be split into equal parts. One half of the estate is then divided among the descendants related to the deceased through the predeceased mother and the other half among the descendants related to the deceased through the predeceased father.

·       Deceased does not leave a spouse, descendant or parents, but only one of the predeceased parents left descendants
The descendants of the predeceased parent who left descendants, will inherit the entire intestate estate.

·       The deceased does not leave a spouse or descendants or parents or descendants of his parents. The nearest blood relation inherits the entire intestate estate.

·       The deceased is not survived by any relative. 
Only in this instance will the proceeds of the estate devolve on the state.

·       What is the position with regard to an illegitimate child of the deceased.
An illegitimate child can inherit from both blood relations, the same as a legitimate child.

·       What is the position with regard to an adopted child of the deceased.
An adopted child will be deemed

§  to be a descendant of his adoptive parent or parents.

§  not to be a descendant of his natural parent or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child.