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.

Adoption Advice – can I adopt my friend’s baby?

A client asked how she goes about adopting her friend’s child, soon to be born. The friend wishes to give up her baby for adoption.

The biological parents would need to receive counselling from an accredited adoption social worker to look at all the options available to them when planning the future for their unborn child.

Should they decide on adoption, they will be assisted to sign consent for the baby’s adoption, in a Children’s Court.

The biological parents would have 60 days after signing the adoption consent to change their minds about the adoption.

Its best that during this period, the baby is placed in a temporary safe care facility.

As a prospective adoptive parent, you would need to go through a screening process with an accredited adoption agency or with an accredited adoption social worker in private practice which involves attending an orientation meeting, interviews with a social worker, a full medical with a doctor on our panel, a psychological assessment, a marriage assessment (if married or in a committed relationship), a home visit, police clearance and clearance from the Child Protection Register.  You would also be required to attend a full day’s training and preparation group.

The screening can take between 5-6 months. There is a charge for all professional services and you would be responsible for paying the doctor and psychologist directly.

The baby would remain in temporary safe care until the prospective adopters have completed the screening process and the baby has become adoptable.

For more on this topic, go here: https://goo.gl/e2AHvJ

Sectional title owners – who is responsible for excess payments on insurance claims?

Owners in sectional title schemes believe – incorrectly – that because the body corporate insures the common property it must pay any insurance excesses (e.g. for a burst geyser).

In fact, the Sectional Title Act provides that the owner in a sectional title scheme is responsible for all excess payments on insurance claims – unless the body corporate has passed a special resolution that it will cover these, in certain special cases.

Prescribed Management Rule 29 (1) requires the trustees to take reasonable steps to insure the buildings and all improvements to the common property to the full replacement value and must negotiate excess amounts, premiums, cover, and insurance rates on behalf of the body corporate.

The most common insurance claims relate to damage caused by burst geysers and the problems they cause. Insurance companies often negotiate a higher excess amount for such claims, to reduce the overall insurance premium and claims.

Most insurance companies have call centres set up to deal with the more common claims and on these cases no excess, or a considerably reduced excess, will usually be payable, provided the centre is contacted quickly and allowed to send one of their preferred suppliers to handle the work. Quick action by the owner can save unnecessary damage to the unit (and to other units).

Landlord harassing a tenant?

What rights do I have when a landlord victimizes me as a tenant?

You should take the matter up with the Rental Housing Tribunal, who offer their services free of charge. Click here to find out more about your rights as a tenant, and residential leases: https://goo.gl/QkPd8f

Provincial Rental Housing Tribunal contact list:

Gauteng – 011 630 5035

Western Cape – 021 483 4190

KwaZulu Natal – 031 336 5300/5222

North West – 018 387 6057

Limpopo – 015 294 2241

Mpumalanga – 013 7666 200

Northern Cape – 053 830 9444 / 9544

Does my mom’s power of attorney endure if she can’t manage her affairs?

IS AN ENDURING POWER OF ATTORNEY BINDING IN SOUTH AFRICA?

A person has full contractual capacity if he or she can conclude a legally binding contract. A party’s contractual capacity may be affected by mental illness, intellectual disability, physical disability, head injury, an extended period of unconsciousness, stroke or extreme old age, etc. 

In some countries, a person can make an Enduring Power of Attorney for his or her property or personal care and welfare. The Enduring Power of Attorney for property will take effect at any time or only if the person becomes mentally impaired. The Enduring Power of Attorney for personal care and welfare will only begin when he or she is no longer capable of making personal decisions to deal with their own affairs, due to any of the above reasons. 

In South African law, there is no such concept. If you execute a special (for limited purposes) or a general (an all-encompassing) power of attorney in favour of someone (called your agent) the agent’s authority to act under that power of attorney ends on your death, insolvency or incapacity (where you are unable to make rational decisions or are incapable of managing your own affairs).

So, if the power of attorney ends, what’s next?

If the value of your mom’s estate exceeds R 200,000 and his annual income is more than        R 24,000, then we must apply to court for the appointment of a curator bonis or curator ad personam, to manage her affairs. This is a hugely expensive business.

The term “bonis” means “goods” (as in assets) in Latin. A curator bonis is concerned only with the financial affairs of the person. The curator ad personam (often the same person) is a person appointed by a court to manage the day to day personal affairs of a person unable to do so because of mental or physical incapacity.  The term “ad personam” means “for the person” in Latin. 

If her estate and income, is less than R 200,000 and her annual income is below R 24,000, we can apply to the Master of the High Court in terms of the Mental Health Care Act, firstly to declare that your mom is mentally ill, and then for the appointment of administrator (usually an attorney) to care for and administer the property of the mentally ill person. This is a simpler and cheaper process.