Source:
A simple guide to South African Family Law by Nthabiseng Monareng
Introduction
One of the most important
things that a person needs to think about is death and how their assets will be
distributed after their death. When a person dies, their assets will be
distributed either in terms of their will (testate succession) or according to
the rules of intestate succession, if the person has not left a will.
Intestate succession (dying without a will)
When a person dies without leaving
a will, that person is referred to as having died intestate. This means that
the deceased’s assets and property will be distributed in terms of the
Intestate Succession Act 81 of 1987.
In terms of intestate
succession law, only certain people, called beneficiaries, can inherit from the
deceased’s estate. These beneficiaries are: the deceased’s legal spouse,
children, blood relatives, and adopted children.
A deceased’s estate consists
of liabilities (debts) and assets (properties, money, car, household furniture,
and so on). If the deceased was married in community of property, the surviving
spouse must receive his or her half share of the joint estate. If the deceased
was married out of community of property but with the accrual system, the
surviving spouse might have a claim against the deceased’s estate for an
accrual share. Only once the debts have been paid off, and the surviving spouse
has received his or her share in terms of the marriage in community of property
or his or her share in terms of the accrual system, can the deceased’s estate
be distributed.
Procedure for inheriting intestate
When the deceased has left a spouse and children
The spouse and biological
children will inherit. Firstly the child’s share has to be calculated.
Child’s share
When a spouse dies and is
survived by a surviving spouse and children, a child’s share must be
calculated. To calculate a child’s share you divide the value of the estate by
the number of children of the deceased, plus one (the surviving spouse).
·
The law
says that a spouse must receive R250 000 or a child’s share, whichever is the
higher amount.
Example 1
John dies and he leaves his
wife Mary and three children. His estate is worth R1 000 000 after payments of
debts. Take R1 000 000 and divide it into four. The result will be R250 000.
All four will get R250 000 each.
Example 2
John dies leaving behind four
children and a wife. His estate is worth R1 000 000, after payment of debts.
You take R1 000 000 and divide it by five. The result will be R200 000. The
wife gets R250 000 and the children share the difference of R750 000 and each
R187 500.
·
In the
examples above, the marriage was out of community of property.
Example 3
John and Mary were married in
community of property. John dies and leaves a joint estate worth R600 000 after
payments of debts. He also left behind a wife and two children. Mary has to
receive her half share before distribution can occur. R600 000 divided into two
is R300 000. Mary will firstly receive R300 000 under matrimonial property law.
Mary and the children will then share the remaining R300 000.
A child’s share has to be
calculated first. R300 000 divided into three (Mary and two children) is R100
000. Because the amount is lower than R250 000, Mary will receive R250 000, and
the children will share the rest of the money. In the end, Mary inherits R250 000,
and receives the R300 000 by virtue of the marriage in community of property.
If any of the deceased’s
children have died and have left children of their own (for example,
grandchildren of John), the children will take the place of their deceased
parent and inherit his or her share. They will then divide the share that would
otherwise have gone to their deceased parent equally between them.
When only a spouse survives the deceased
When married spouses do not
have children and one of the spouses dies, the surviving spouse will inherit
the entire estate. The deceased’s parents, brothers and sisters will inherit
nothing.
When only the children survive the deceased
The children will inherit the
entire estate and share it equally.
When the deceased dies without a spouse or children
If the deceased’s parents are
still alive, each one will inherit half of the estate. If only one parent is
alive, the dead parent’s children or grandchildren will inherit in the place of
their parents. Only if the parent does not have children or grandchildren will
the other parent inherit the entire estate.
Where there are no parents,
the deceased’s estate will be inherited by his siblings equally. If one of them
has passed away leaving children, the children will inherit the share of the
deceased’s sibling.
When the deceased does not have a spouse, children,
parents or siblings
The closest blood relative of
the deceased will inherit. Close in terms of blood relations means, for
example, uncles, aunts, cousins, and so on. It does not mean close in terms of
who was living close to the deceased or who was in a close personal
relationship with the deceased.
General notes about intestate succession
1.
An
illegitimate child has a legal right to inherit from his or her father.
2.
An
adopted child can inherit from his adoptive parents and their blood relatives.
The child cannot inherit from the natural parents and their blood relatives and
they in turn cannot inherit from the child. The only time they can inherit is
when they are named as beneficiaries in the child’s will.
Testate succession (dying with a will)
When a person dies and has
left a will, that person has died testate.
What is a will?
A will is a written document
in which a person, called the testator, voluntarily stipulates how his or her
estate will be distributed after his or her death.
Drafting a will
Requirements for drafting a will
·
The
testator must be over the age of 16.
·
He or
she must be a person of sound mind, in other words, must be mentally capable.
·
The
testator must draft the will personally. However, there are circumstances
whereby a third person can draft a will on behalf of the testator, for example,
if it is drafted by a lawyer, or by a third person on behalf of a testator who
cannot read or write.
Procedure for drafting a valid will
1.
The
will must be in writing.
2.
The
testator must sign it at the end in the presence of at least two witnesses. If
the will is more than one page long, every page must be signed by the testator.
If the testator cannot read or write, he can sign by making a mark (X), or
someone else can sign on his or her behalf. In either of these cases, the will
must be signed in the presence of the testator, two witnesses and a
commissioner of oaths.
3.
If the
testator signs by a way of a mark (X), or if someone else signs the will on the
testator’s behalf, a commissioner of oaths must attest the document, by putting
the prescribed certificate on the will and signing every page of the will other
than the page on which the certificate appears.
4.
Two or
more witnesses must sign the will in each other’s presence and in the presence
of the testator.
5.
The
witnesses must not be named as beneficiaries in the will.
