What is the Law of Succession in South Africa?

The days, weeks and months following the death of a loved one can be hard to navigate regardless of how organised things appear to be. Sadly, this time is usually made even more difficult by the subsequent inheritance process and the settling of outstanding debts. People are often amazed at how divisive and complicated this stage can become as they are forced to figure out everything from how inheritance procedures work to the legalese surrounding a valid will. But how does this process really work? How is inheritance prioritised and who gets put in charge of this whole operation? What is the Law of Succession in South Africa?

The Law of Succession covers the rules and procedures that take effect following an individual’s death with regard to the devolution of that person’s estate. Simply put, it involves the regulations which cover issues such as the settling of debts and the inheritance of assets, among others.

When determining how a person’s estate is divided following their death, the most important factor to consider is whether or not they had a valid will. For instance, the deceased may have stipulated certain things within their will such as who should act as the executor of the will, how their estate should be dissolved and who should be prioritised, etc.

If a valid will is found, the executor must carry out the deceased’s instructions as closely as possible while still fulfilling past obligations such as unpaid debts and antenuptial contracts. In such a scenario, the order of inheritance will normally be determined by the deceased. On the other hand, if no will is available, the executor is expected to follow the prescribed formula of succession as mandated by the Intestate Succession Act.

How does Inheritance Work When There’s No Will?

If no valid will is discovered following a person’s death, that individual is said to have died intestate and an executor will be assigned to settle their debts and divide their estate. This executor is usually nominated by the family members of the deceased and this decision is almost always accepted by the Master of the High Court who retains plenary power regarding the final pick.

It is common for family members to be chosen as executors, however, it may be wiser to hire a professional as the workload can be extreme. Just keep in mind that executor fees are based on the gross value of the deceased estate’s assets.

As mentioned, once an executor is chosen, they must calculate the value of the deceased’s assets and settle any outstanding debts. If the debts cannot be paid off by the money left by the deceased, assets may be sold to cover the costs. Only after all these debts have been paid off, will the rest of the estate be divided amongst the surviving relatives.

The order in which relatives will be prioritised for inheritance is as follows –

• Spouse/s
• Descendents
• Parents
• Siblings
• Nearest Blood Relation
• State

When the deceased is survived by both a spouse and biological children, the estate is divided after calculating a child’s share.

What is a Child’s Share?

A child’s share is calculated by dividing the value of the estate by the number of surviving biological children plus the number of surviving spouses. The spouse/s will then receive either a child’s share or R250 000 – whichever amount is larger. The children will then inherit the balance of the estate.

How is Inheritance Prioritised in a Polygamous Marriage?

In cases involving more than one spouse, the spouses are prioritised equally over the children. That said, certain maintenance claims may still be made even if the individual does not qualify for an inheritance.

How does Child Maintenance Work after a Parent’s Death?

Although spouses are normally prioritised over children, an exception exists with regard to various dependents. Most notably, maintenance claims can be made on behalf of the children of the deceased while they are minors or they can be made by the children personally when they have reached the age of majority. 

Wills can also be challenged on the grounds of maintenance claims, for example, even if a person stipulates in their will that one of their children should not receive any of their money, if the courts determine that such a child requires maintenance, such a claim may partially override the wishes of the deceased.

Can an Inheritance be Withheld by the Court?

Yes, it can. A recent case occurred in which a child passed away and left behind a large estate of around R15 million.

According to the Intestate Succession Act, the parents of the child should be prioritised when the estate is being divided, however, after it was claimed that the father of the child was not present at the birth and never took up any parental responsibilities, the court decided that the child’s grandmother was the “true parent” and determined that the estate should be divided between the mother and grandmother instead.

Do Antenuptial Contracts Apply After Death?

Yes, they do. Certain contracts, such as those including an accrual system, are valid not only when a marriage is dissolved but also when one of the partners passes away. For example, let’s imagine that a couple is married out of community of property with accrual. This essentially means that, once the marriage ends (either through divorce or death) each partner is entitled to the asset value that they brought into the marriage, after which they share what they have built up during the course of the marriage.

In other words, if the accrual of the remaining spouse’s estate is less than the deceased spouse’s estate, the remaining spouse will be able to lodge a claim with the executor of the will to acquire their share. This claim must be settled before the deceased’s estate can be divided amongst any other beneficiaries.

Does the Government Inherit your Money if you Do Not have a Will?

As mentioned, if you do not have a valid will, your assets will be divided according to the law of succession which prioritises relatives in a specific order. If however, you do not have any surviving relatives, your assets will be placed into a Guardian Fund for up to 30 years, during which time they may be claimed by a relative who comes forward. In the event that no relative comes forward, your assets will be forfeited to the state.

Are Unmarried Partner’s Eligible for an Inheritance?

Generally speaking, if you die without a valid will, any surviving unmarried partners will not receive the same benefits as those who are legally married. In other words, the law of succession will prioritise blood relatives over such a partner and they would not be entitled to any part of the deceased’s estate.

Are Children Born Out of Wedlock Entitled to an Inheritance?

Yes, they are. When working via the law of succession, illegitimate children are entitled to an inheritance from their blood relations in the same way that legitimate children are and can also make maintenance claims from the deceased’s estate.

In Conclusion – What is the Law of Succession in South Africa?

The Law of Succession refers to the rules and regulations surrounding the devolution of a deceased individual’s estate. It governs certain actions such as how outstanding debts are paid, how contractual obligations are upheld and how the remaining assets are inherited, etc.

The Law of Succession covers the procedures that take effect following a person’s death with regard to the devolution of that person’s estate.

The most influential factor in these proceedings is whether or not the deceased individual produced a valid will. If a valid will exists, an executor is appointed to oversee the proceedings, settle debts and ensure that the wishes of the deceased are carried out as closely as possible. If no such will exists, an executor is appointed to settle debts and ensure that the remaining assets are transferred to the correct relative as stipulated by the Intestate Succession Act.

This act provides the order in which relatives are prioritised for inheritance if no will is found. If no blood relative can be found, the estate will be placed within a Guardian Fund for up to 30 years, after which it will be forfeited to the state. Executors are usually chosen by the family of the deceased and various professional executors can be hired to fulfil the role.

Even if a child or spouse is not included in a person’s will, they may be able to make maintenance claims which must be settled before the estate is inherited. Children born out of wedlock are also able to make such a maintenance claim and (if no will exists) are entitled to an inheritance in the same way that a legitimate child is.

When dividing an estate amongst a surviving spouse and children, a child’s share is determined. A child’s share is calculated by dividing the asset value of the estate by the number of children plus the number of spouses, each spouse will then receive either R250 000 or a child’s share – whichever amount is larger. The remainder of the estate will then be divided amongst the children.

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 our posts cite the constitution in many instances, 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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