01 Sep What is the effect of dying intestate in South Africa?
The family consequences of dying intestate are seldom ideal. For that reason (and not to be alarmist) at Netto Invest we believe strongly that if you have net assets in excess of R125,000, you should have a will. If you don’t, here is what happens when you die unexpectedly and unprepared.
If you die intestate, the SA government uses a default will for you
If you were to die today without leaving a will, under South African law your estate is distributed according to the laws of intestate succession, as set out in the Intestate Succession Act of 1987.
This means that if you do not draw up a will, on your death your assets may be distributed in a way that is different from what you would have chosen had you taken the opportunity to do so. In terms of the Act, your closest relatives will inherit from you in strict, predetermined order and proportions.
In effect, if you don’t have your own will the State has made a one-size-fits-all option to be applied for all its citizens.
So, how would the SA Government allocate your intestate estate?
In general terms, this is how your estate would be divided as a result of dying intestate:
|Who is the deceased survived by?||Who gets what from the deceased estate?|
|Only surviving spouse||Total estate goes to the spouse|
|Only descendants||Total estate is divided between descendants|
|Spouse and descendants||The spouse gets a child's share (R125 000) and the balance is divided equally between the descendants|
|Both parents||Total estate is divided equally between both parents|
|One parent only||Total estate goes to the parent|
|One parent & descendants||Half the estate goes to the parent; balance is divided equally among descendants|
|No spouse; No descendants; No parents; but descendants through mother & descendants through father||Estate divided into two parts: half to descendants through mother; half to descendants through father|
|No spouse; No descendants; No parents; No descendants through mother or father||Estate goes equally to blood relatives that are nearest in degree of relationship|
In addition, an intestate estate still needs an executor
As this is something you would have done in your will – appoint your chosen executor – when you die without a will it is again left to the government to appoint an executor to wind up your estate. This could cause additional hardship for your family as he/she would be an outsider that does not know them or your personal circumstances.
Is it complicated or expensive to get a will?
Getting professional advice and having your will draw up by an attorney is inexpensive and highly recommended. If your circumstances are simple and straightforward, you can even use our will template to draw up a legal will yourself. If, however, your situation is not absolutely straightforward, we strongly encourage you to take professional legal advice.
When should you get professional assistance to draw up your will?
Unless your circumstances are absolutely simple and straightforward, we suggest you seek legal assistance with your will, and reputable financial advice for most efficient and tax effective estate planning. Here are some of the circumstances that make the requirements of your will more complicated:
- You have a business
- You are married
- You are divorced
- You have a life partner but are not legally married
- You have minor children (under 18 years old)
- You have handicapped dependents
- You have overseas assets
Any of these circumstances make it wise to seek professional advice rather than using the template provided.
Can Netto Invest help you with your will?
At Netto Invest we work closely with a number of attorneys who can meet you in our office to assist you in drawing up your will and taking your specific estate planning and financial circumstances into account.
How to write your own will
As mentioned above, you should only write your own will in the simplest of circumstances. If your circumstances are complex (please see a list of possible complications above – it is not exhaustive) you are advised to contact an attorney to draw up a will for you.
If you decide to go ahead and use the free will template, please read the information below to make certain that you create a valid will. If your will is found to be invalid, your effort will have been wasted because your estate will still be allocated to your heirs according to the rules of Intestate Succession as set out above.
A checklist for a valid will
In order to be valid upon your death, your will must:
- Be in writing, either typed or hand written
- Be signed in the presence of at least two competent witnesses, who are present at the same time and also in the presence of the testator.
- Be signed on every page by the testator and witnesses.
- Be dated clearly so that if there are multiple wills, it can be established easily which will is the final one.
Please note: Family members or any people who benefit from your will may not complete the blanks in this document, and may not sign as witnesses.
Should you nominate your spouse or an independent executor to administer your estate?
It is generally advisable to nominate your spouse as an executor. This gives them the freedom to shop around and choose the most suitable financial or legal assistance in administering the estate. It also gives them negotiating power with regards the costs of executing the estate.
However, if you anticipate that there is likely to be conflict among your beneficiaries it is advisable to appoint an independent executor.
Accrual: a method for calculating the division of assets on death or divorce
Asset something owned such as property, a vehicle or money in the bank
Beneficiary a person who benefits in terms of a will or from a trust
Bequeath/bequest to give something by will to another
Codicil an alteration to an existing will which must be signed in the same manner as a will is signed
Collation the legal obligation of an heir to bring into an estate any benefits received
from a testator/testatrix during their lifetime
Community of Property a marital property system in terms of which spouses share equally their assets and liabilities
Descendants a person’s children, grandchildren and all others descending from that person
Estate a person’s assets and liabilities
Executor/executrix a male/female person appointed to administer and wind-up an estate on death of another
Guardian a person who looks after the interests of people, such as children, who cannot look after their own affairs
Immovable property land and the fixed structures built on it
Issue a person’s children, grandchildren and all other lineal descendants
Master of the High Court the Court’s representative who oversees the administration of deceased estates, trusts, insolvent estates and the care of minors
Minor a person under the age of 18 who has not achieved majority through marriage or a court order
Per stirpes a stipulation that, should a beneficiary predecease the testator, the beneficiary’s share of the inheritance will go to his or her heirs
Power of assumption the power granted to an executor or trustee to nominate other persons to be appointed as co-executor or co-trustee to assist them
Representation where a nominated heir dies per stirpes before the testator/testatrix and the deceased heir’s issue inherit the deceased heir’s inheritance in equal shares
Residue all that is left of an estate after all debts, taxes, legacies and bequests have been paid
Testator/testatrix a male/female person who makes a will
Trust an agreement in terms of which property is held for one or more beneficiaries by a trustee or trustees
Trustee a person who holds property and looks after it on behalf of someone else
DISCLAIMER: This article is provided for information purposes only and does not constitute legal advice. Please to contact us directly with any questions you may have in this regard.