The Consequences Of Not Having A Valid Will

As the saying goes there are two things in life that are guaranteed: DEATH AND TAXES. Although most people don’t like talking about either of these topics, they are both very important topics which need to be discussed. In this article I will only discuss the former, and the consequences of not having a valid will. It is concerning that the majority of South Africans do not have a valid will, which can be very traumatic for the family left behind.If you die without a valid will you lose the right to decide what happens to your estate after death, and your estate is determined in terms of intestate succession, which is based mostly on blood relationship.

The following occurs if an estate is distributed via intestate succession and if the Deceased is survived by the following;

A spouse or spouses but no living descendants: The spouse inherits the estate, if the deceased was a husband in a polygamous marriage then the surviving spouses will inherit the estate in equal shares.

No surviving spouse but living descendants: The estate is divided between the children of the deceased. If one of the deceased’s children predeceased him/her, then the children of the pre-deceased’s child (the deceased’s grandchildren) will inherit that child’s portion.

No spouse or children: The estate is divided equally between the parents of the deceased.

If the deceased has no surviving spouse or dependents but has only one surviving parent: The sole surviving parent inherits half the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent shall inherit the estate.

If the deceased is not survived by spouse, descendant or parent but is survived by descendants of the deceased mother or father who are related to the deceased through the parents: One half of the estate is divided equally among the mother’s descendants and one half of the estate divided equally among the father’s descendants.

If the deceased is not survived by a spouse, descendant, parent or descendant of a parent: The other blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.

Where there are no relatives: If the assets have not been claimed by a legitimate heir after 30 years then the estate is forfeited to the state.

If the deceased is married in community of property with descendants: The deceased’s spouse will receive half of the joint estate plus R250 000 or a child’s portion, whichever is greater.

Examples of how the child’s portion is calculated:;

Value of intestate estate is R550 000. The deceased is survived by a spouse and 3 children. A child’s share amounts to R137 500 (R500 000 divided by 4 (3 children plus spouse)). The child’s share is less than R250 000. Therefore, the spouse will inherit R250 000 and each child will inherit R100 000,00. (R500 000 less R250 000 to the spouse, and the remainder is divided by 3).

Value of intestate estate is R1 250 000. The deceased is survived by a spouse and 3 children. A child’s share amounts to R312 500 (R1 250 000 divided by 4 (3 children plus spouse)). The child’s share is greater than R250 000. Therefore, the spouse will inherit R312 500 and each child will also inherit R312 500 (R1 250 000 less R312 500 to spouse, divided by 3).

Below are some of factors to consider why leaving a valid will is important:

If there is no valid will and a minor inherits, his or her portion will be held by the Guardian’s Fund at the Master of the High Court until the minor turns 18. There are stringent requirements and processes put in place before these funds can be accessed in order to prevent abuse and fraud. Further if you live with someone but are not married, and die intestate the law will not necessarily recognise them as a beneficiary of your estate. Another factor is that if you are divorced and pay maintenance, a claim can be made against your estate for that maintenance. Lastly, if one parent dies, the surviving parent will continue as the guardian of the minor child. However, if both parents die, and no guardian has been appointed in the will, any interested person may apply to court to be appointed as the guardian.I would also advise to have an updated and valid will, which deals with your entire estate in detail, as well as what would happen to your minor children in terms of financial support and guardianship, should this be applicable.