Most of us have a pretty clear idea of who we'd want to inherit from us one day. Perhaps a partner, your children, or even a parent or someone else who has always been part of your life. But if you die without a valid will, the law doesn't ask what you would have wanted. Instead, the Intestate Succession Act decides who is legally entitled to inherit from your estate and how much they receive. There's a specific formula, an order of inheritance and, sometimes, an outcome that looks very different from the one you had in mind.
So, who actually gets what when you pass away?
"Intestate succession" is just the legal term for what happens when someone dies without a will. The Intestate Succession Act 81 of 1987 sets out who inherits and in what order. In other words, your family can't simply divide things up based on what they think you would have wanted. The starting point is the legal formula the law provides, and that formula follows your family tree surprisingly far.
This scenario is quite straightforward. If you leave a spouse and have no kids, your spouse inherits your estate.
If you aren't married or in a legally recognised partnership, your kids inherit from your estate. If they all outlive you, they would usually share equally. But, say one of your children passed away before you and had their own kids, they step into their parent's place and inherit that part of the estate. So, your grandchildren could inherit through their parent.
Something to keep in mind is that children born outside of a marriage can inherit too, and adopted children are also recognised for intestate succession purposes.
This scenario catches a lot of people out, because your spouse does not automatically inherit everything. Your spouse inherits whichever is the greater: R250 000 or a child's share. The rest goes to your kids. Something to keep in mind is that children born outside
Keep in mind: children born outside of marriage can inherit too, and adopted children are also recognised for intestate succession purposes.
A child's share is worked out by dividing the estate value by the number of children who will inherit, plus the surviving spouse. To practically explain this, here's an example:
Say the value of the estate is R1 million, and you leave behind a one spouse and two children. That means there are three shares.
R1 million ÷ 3 = R333 333
Because R333 333 is more than R250 000, your spouse gets roughly R333 333 and each child gets roughly the same. So in this example, your spouse gets about a third of the estate. Not everything.
Now let's make the estate smaller. If there's R600 000 to divide between one spouse and two children.
R600 000÷ 3 = R200 000
Because R200 000 is less than the R250 000 minimum, your spouse gets R250 000. That leaves R350 000, which your two children share. So they would each get R175 000.
Another important thing to keep in mind is that these two examples start with the amount actually available to distribute. Things like your marriage regime (whether you are married in- or out of community of property) can affect what forms part of the deceased estate in the first place.
The law starts moving further through your family tree. If both your parents are alive, they usually share the estate. If only one parent is alive, part of the estate may pass down the others parent's side of the family to brothers, sisters or their children. If neither parent is alive, the law can keep moving through the family tree until it finds the nearest blood relatives who qualify to inherit. So yes, it can go pretty far.
The Intestate Succession Act gives families a legal safety net when someone dies without a will. But a safety net isn't the same as having a plan in place The formula can't know the people you love, the relationships that matters most to you or the plans you had for the people you leave behind.
A valid will can. It gives you the chance to say who should inherit, nominate people you trust and put proper plans in place for your children. It gives the loved ones you leave behind something the law can't always give them: certainty about what you wanted.
When it comes to the life you've built, the people you love and what happens after you're gone, the law shouldn't have to guess. Make sure the final is say is yours.