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  • Stéffani Flies

The misconception of not having a will

There is a misconception among

the general public that if you do not have a will at the time of your passing, your belongings go to the state.


The correct position is that should you not have a will at the time of your passing, your estate will be dealt with in terms of the Intestate Succession Act, 81 of 1987. This Act ensures that your estate will be divided between your spouse/s and/or family member/s and that your belongings in your estate will only go to the State if no family members can be located after a period of 30 years.


Your estate will be dealt with as follows in terms of the Act:


1(a) – if you are survived by a spouse/s, but not a descendant/s, the spouse/s will inherit;

This means that should you have no children, your spouse will inherit your whole estate. If you have multiple spouses, they will inherit your estate in equal shares.


1(b) – if you are survived by a descendant/s, but not a spouse/s, the descendant/s will inherit;

Should you only be survived by your adoptive children and biological children, they will all inherit in equal shares.


1(c) – if you are survived by a spouse/s and descendant/s, the spouse/s will inherit a child’s share and the descendant/s will inherit the residue of the estate;

Your spouses will be entitled to a child’s shares (this amount is determined by the minister) and should there still be assets left after the child’s shares are deducted, then your children will inherit the rest in equal shares.


1(d) – if you are survived by a parent/s, but not a spouse/s and descendant/s, your parents will inherit in equal shares and should only one of your parents survive, that parent will inherent the whole estate.


1(e) – if you are not survived by a spouse/s, descendant/s or parent/s, but you are survived by a half sibling/s, aunt/s and uncle/s, they will inherit in terms of the Act.

Should you have no children and spouse/s, the executor of your estate will locate half siblings and aunts and uncles and then your estate will be inherited by them.


To conclude the above, the Intestate Succession Act makes provision for the division of your estate should you not leave a will.

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