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Intestate Succession: The Legal Consequences of not leaving a valid Will

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Intestate Succession: The Legal Consequences of not leaving a valid Will

13th June 2018

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The Intestate Succession Act 81 of 1987 (hereinafter the “Act”) regulates the circumstances where a person dies without a Will or where a person dies with a Will, but the Will is invalid for certain reasons. Consequently, the deceased estate will then be administered in terms of the aforementioned Act.

The Act statutorily determines the distribution of the deceased estate, regardless of whether it was the deceased’s intention to have his estate distributed in this statutory manner. The Act distributes the deceased estate in terms of different parentela groups - which is a particular parentela group which consists of the blood relations of the person and its descendants. The first parentela is the deceased’s descendants e.g. his children. The second parentela is the deceased’s parents and their descendants and the third parentela is the deceased’s grandparents and their descendants.

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Where the deceased dies and leaves no Will or had a Will that is not valid, the deceased estate will be distributed according to the Act. Where the deceased has descendants, the first parentela group will inherit.

Distribution of the Deceased Estate in terms of the Act: Spouse and Children
In terms of Section 1(1) of the Act, if the deceased is only survived by his/her spouse and no children the spouse will inherit the estate in full. When there is only a descendent and no spouse the descendent will inherit the entire estate. For example, where the deceased has no living spouse, but has two major children, the children will inherit the deceased’s estate in equal half shares.

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However, when the deceased is survived by both a spouse and descendants the estate will be divided in the following manner: The spouse is entitled to a spouse intestate share which is currently R250 000.00 (Two Hundred and Fifty thousand Rand) or a child’s share, whichever is greater. The remaining decedents will inherit the balance of the estate. When the value of the child’s share is below R250 000.00 (Two Hundred and Fifty Thousand Rand), the spouse will inherit a child’s share.

Distribution of the Deceased Estate in terms of the Act: Parents
If there are no heirs in the first parentela group, persons in the second parentela group will inherit. For example, where the deceased is only survived by his parents, the parents of the deceased will inherit in equal half shares. In the circumstances where the deceased only has a single surviving parent, the surviving parent will inherit one half of the estate and the descendants of the deceased parent, will inherit the other half of the deceased estate. Should there be no surviving descendants of the deceased parent, then the surviving parent will inherit the full estate.

Distribution of the Deceased Estate in terms of the Act: Grandparents
If there are no heirs in the second parentela, then the estate will be winded up in terms of the third parentela. Where the deceased is survived by his grandparents, his grandparents will inherit in equal shares. If there are no heirs in the third parental group, then the estate will be inherited by closest living blood relatives.

Conclusion:
As mentioned, the Act distributes the estate in a statutory manner regardless of the intention of the deceased. In other words, even if the deceased had the intention that a certain individual should inherit his whole estate, this may not be the case if the Rules of the Act is followed.

Thus, a person could inherit even though it was not the wishes of the deceased. For example, the Act will allow half-sisters or half-brothers to inherit whom the deceased may have no knowledge of. The risk of unknown or unwanted persons inheriting from the deceased’s estate is an important aspect when considering whether to conclude a Will. Conversely, it is also possible that individuals that the deceased would have wanted to inherit, may not inherit from the deceased estate in terms of the Act.

It is important to note that it is never too late or early to have your Will drafted. Leaving a valid Will after your death, gives you the opportunity to state how your estate should devolve upon your death. This will ensure that your estate will be distributed according to your wishes and that your estate will be inherited by your family or friends that are financially dependent on you.

Contact us at SchoemanLaw Inc. today for a Will, to ensure that your estate is distributed according to your wishes.

 

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