Death is a depressing subject for everyone and spending too much time worrying about your own demise can be a little morbid. For this reason, some people avoid the topic at all costs and never really get around to writing a will or figuring out what will happen to their estate once they’re gone. What happens to my assets if I die without a valid will? Who gets what and how is the process of inheritance decided?
After your death, a representative known as an executor will be appointed to settle your debts and divide your estate. If an individual dies without a valid will, a lengthy process will begin to pay off any outstanding debts and liabilities that the deceased individual had incurred.
If these debts cannot be paid off with the money left over, parts of the deceased’s estate may be sold in order to do so. Only then may the estate be divided for the purpose of inheritance. Put simply, once you die, all your debts must be settled and many of your assets may be sold if that’s what it takes to pay the bills. Once all these debts are paid, the remaining assets are divided amongst your beneficiaries in a specific order.
First and foremost, we need our definitions
What is a Valid Will?
The 3 factors required in making a valid will are –
- The individual must be at least 16 years old.
- The will must be written. This includes both handwritten and typed but the person who writes the will cannot be included in it. Wills and/or additions to wills that are passed on by word of mouth or memory are usually not legally recognized.
- Each page of the will must be signed by the writer and the will itself must be signed by at least 2 witnesses.
Wills are often disputed as fake or posthumously modified, however, the burden of proof rests with the accuser. This means that the job of proving a falsified will belongs with the individual who believes that it is invalid and it is not up to others to prove that it is authentic.
What is an Executor and How are they Appointed?
An executor is an individual who takes temporary control of the deceased’s estate and proceeds to settle their accounts and oversee the inheritance process.
The executor does not actually inherit all of your assets and the role is often less glamorous and more painstaking than anything else. While dealing with the tragedy of death, many families choose to hire a professional executor, this can also help to ensure that the allocation of the estate is done fairly and without bias.
Executors may also be primary inheritors if you choose somebody already mentioned in the will, alternatively, if you choose a third party to act as an executor they are entitled to a small percentage of the estate as compensation for their work, although this amount is negotiable.
The role of executor can be determined by the deceased individual if it is stated in their will. If you die without a valid will, the executor is usually chosen by your beneficiaries and loved ones.
Those involved can nominate a person to act as an executor and this choice is normally accepted although the Master of the High Court always makes the final decision.
If you have created a valid will, the executor must see that it is carried out as closely as possible. On the other hand, if you die without leaving a will, the executor must instead follow the prescribed formula for succession.
What is the Order of Inheritance?
The division of a deceased person’s assets is normally followed as closely as possible to their specifications, however, if a valid will does not exist, the estate will be divided according to the procedure detailed in the Intestate Succession Act of 1987.
The order in which surviving family will be prioritised is as follows –
- Spouse
- Descendants
- Parents
- Siblings
- Nearest Blood Relation
- State
In instances that involve a spouse and children, a child’s share is calculated and the estate is divided by that system.
What is a Child’s Share?
When dividing an estate amongst biological children, a formula is used to determine the inheritance. This formula involves calculating the value of the estate and dividing it by the number of children of the deceased, each child then gets a share.
In cases which involve children and a surviving spouse, the total value is divided by the number of children plus 1 (the spouse). The spouse then gets either R250 000 or the child’s share – whichever amount is larger.
How Are Assets Divided in a Polygamous Marriage?
If the deceased had multiple spouses, the spouses are all prioritized equally and will take priority over other inheritors including children.
Can a Partner be an Inherit of a Will?
As mentioned, a valid will can recognize anybody as a chief inheritor. If no such will exists, partners will only be recognized as inheritors if they are legal spouses. This means a person that was legally married to the deceased at the time of their death. Even if the deceased had been living with a person for many years before their death, if they were not legally married, they will not be considered a spouse.
Can the State Inherit your Assets?
Yes, if you do not have a valid will or if you do not have any surviving blood relatives, your assets will be placed in a Guardian’s Fund. The state will hold these assets for 30 years, if they are not claimed by a relative during this time, they will be forfeited to the state.
This Guardian Fund will also be set up in the event that an inheritor is not currently capable of inheritance, such as with a minor, an unborn child, etc.
What Happens if a Deceased Person had Certain Wishes but no Valid Will?
In many cases, a deceased person’s wishes after their death may be well known to many but not formally established in a will. Many family members and friends may argue that the deceased had wanted them to have a certain part of their estate but they are not able to present any other evidence than their own claim.
In most of these scenarios, the state does not recognize such claims, and the estate is divided as pointed out already. This highlights the importance of formulating valid wills as many disputes arise surrounding personal promises and acknowledgements.
Can a Person Disinherit a Family Member from their Will?
In most cases, yes, you may create a will that prevents certain family members from inheriting your estate. The law generally acknowledges the right of the individual to pass on their assets only to those whom they choose.
There are however some expectations to this rule. For example, if the executor or relevant court determines that a child requires part of the inheritance for maintenance and education purposes, this portion may be allocated.
Interestingly, some provisions within a will may be deemed immoral or impossible to carry out. In these scenarios, the rights of the deceased may be circumvented. This was the case when a certain individual stated that a trust they created could not be used to benefit individuals of Jewish heritage, non-Europeans, and/or females.
How does Inheritance work when Married in – Community of Property?
Some may wonder how the division of the estate takes place when the deceased was married under the community of property, or perhaps the deceased created a will that refused their spouse any inheritance.
In these cases, the community of property exceeds the power of the will insofar as half of the estate is concerned. In other words, if you are married in a community of property, your spouse will receive half of your estate when you die. Your will (or the laws of succession if you have no will) will only relate to the remaining half of your estate.
In Conclusion – What happens to my Assets if I die Without a Valid Will?
If you pass away without a valid will in order, an executor will be appointed to settle your outstanding debts and divide your estate amongst your blood relatives. Your family can decide who to nominate for the position of executor and you may hire an independent professional to fulfill this role, however, the Master of the High Court will make the final decision regarding this appointment.
The executor will divide your estate according to a prescribed system that prioritizes spouses and children first. Often, certain provisions have to be made for children to ensure that they have adequate funding for maintenance and education. The term ‘spouse’ only refers to legally married individuals, as such, partners will not receive a part of the inheritance regardless of how long they have lived with the deceased.
If you are married in a community of property, only your half of the estate will be divided for inheritance while your spouse will maintain their half. A valid will needs to be either written or typed, signed on every page by the deceased individual, and signed by 2 witnesses. The writer of the will cannot be an inheritor. A valid will can also only apply to people over the age of 16.
If you have no blood relatives and no valid will, the state will create a Guardian’s Fund and hold the estate for 30 years. If it is not claimed during that time, the assets will be forfeited to the state.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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