Intestacy

What happens when you die without a will?

Death is not something we like to contemplate, but it will come to us all. Benjamin Franklin is credited with the saying, “Nothing is certain but death and taxes.” None of us knows the hour of our death, and most would say that’s a good thing, but it’s wise to prepare for the inevitable. Knowing that your assets will be distributed according to your wishes can remove a source of anxiety in later life and free you to enjoy living. A valid and current will is the only way to ensure your loved ones receive exactly what you intend and avoid the complicated scenario of intestacy.

Provisions of intestacy

If you die without a will (or with an invalid will), this is known as dying “intestate”. When this happens, you expose your intended beneficiaries to the inflexible provisions of the Intestate Succession Act 81 of 1987. The Act’s provisions are: if the person who dies intestate is survived by a spouse, but not children, the spouse will inherit the estate. If the deceased had a spouse and children, the spouse will be entitled to R250,000 or a child’s share, whichever is the greater, and the children will inherit the balance of the estate in equal shares. If there is no spouse, the children will share the estate equally. There are further rules regarding surviving parents and other blood relatives. 

Disadvantages of intestacy

There are numerous disadvantages to dying without a will, including (but not limited to): 

1. You can’t decide how you want to distribute your estate. You may not want some or all of your heirs to inherit, or you may not want them to inherit equally. 
2. Heirs who have already received certain benefits from the deceased before their death may be unfairly advantaged.
3. You can’t make individual bequests of a particular asset to specific beneficiariies (e.g.,   sentimental bequests such as jewellery, items of furniture or mementos).
4. You have no say in the executor appointed to wind up your estate, or their rate of remuneration.
5. You can’t protect minor beneficiaries or beneficiaries who are incapable of managing their  affairs through the formation of a testamentary trust. A minor’s inheritance will be held by the Guardian’s Fund until they turn 18. 
6. You can’t nominate a guardian for your minor children in the event you and your spouse die simultaneously.
7. Probate (execution of your will and distribution of assets) may be delayed if there is any conflict between beneficiaries regarding the  appointment of an executor. All heirs to an intestate estate are obliged to sign a Nomination of Executor form in which they agree who will act as executor.
8. You are not able to express your wishes about your final resting place and whether you are cremated or not.
9. You have no say in what happens to your pets.
10. You can’t express specific wishes via a “Letter of Wishes” or, if you do, the Letter of Wishes may not be recognised by the Master and/or the Executor if it doesn’t comply with the provisions of the  Wills Act 7 of 1953.
11. You can’t make use of the rollover estate duty provisions in the Estate Duty Act to benefit your spouse. These provisions allow the first-dying spouse to leave assets to the other spouse free of estate duty; and the second-dying spouse can make use of any unused portion of the estate  duty exemption of the first-dying spouse to offset any estate duty their estate may attract.
12. Your surviving spouse may not be adequately protected, especially when it comes to the distribution of immovable property if, for example, the deceased was married in community of property and owned a property jointly with the surviving spouse and there are minor children. You also cannot protect your surviving spouse by imposing certain real rights on the immovable property, such as the rights of usufruct (the legal right to use someone else’s property  temporarily) and/or use. 

Maintenance of surviving spouses

If a spouse dies intestate and has not made provision via a will for the surviving spouse’s financial security, the surviving spouse is entitled to lay a claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990 against the estate of the deceased spouse for their “reasonable maintenance needs” until their death or remarriage. This claim has the same status as a claim for maintenance for a dependent child of the deceased. When determining “reasonable maintenance needs”, the Act states that the following factors should  be considered: 

• The amount in the estate available for distribution to the heirs and legatees
• The existing and expected means, earning capacity, financial needs and obligations of the survivor, and how long the marriage lasted
• The standard of living of the survivor during the marriage and their age when the deceased  died 

Keep your will up to date with life events

Your will needs to be up to date. This means taking time to review your will and amend it as necessary as your circumstances change, for example, if you start or extend your family or go through a divorce. Section 2B of the Wills Act states that where a testator dies within three months of their divorce, then any will executed before the divorce will be interpreted as if the former spouse had died before the divorce. If the testator dies more than three months after the divorce without changing the will, it is assumed they intended the former spouse to benefit. In other words, the law acknowledges that the early days following a divorce are a period of adjustment, but within three months you should be able to put your affairs in order. Failure to do so is potentially disastrous for any new long-term partner of a deceased who did not change their will. The new partner may have to prove the existence of a Universal Partnership.

Can you draft a will yourself?

Many templates can be found online that enable you to draft your own will. However, while these forms may make the process seem straightforward, legal advice is recommended. A legal professional will ensure your will is legally sound, clearly expresses your wishes, and minimises the risk of disputes and complications. Legal advice will ensure your will complies with all legal requirements, such as proper witnessing, signing, and specific language that needs to be used. Legal language can be very exacting and you need to draft your will correctly to avoid ambiguity and make your intentions clear and well articulated. There may also be tax implications you are unaware of. A professional will help you minimise the tax burden on your estate and beneficiaries. A lawyer will also make sure you avoid common mistakes, such as failing to dispose of all your assets.

SD Law can help 

Cape Town law firm Simon Dippenaar and Associates Inc. are specialists in family law and divorce law, and can help you draw up your will to ensure your estate is distributed and your children are cared for exactly the way you would like after your death. Don’t die intestate. Contact Simon now on +27 (0) 86 099 5146 or email him on simon@sdlaw.co.za to discuss your needs.

Further reading:

• Divorce and your will
• Cryptocurrency and your will
• Witnessing a will

SD Law

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