The Intestate Succession Act

This is what happens when a person dies without a valid will or with a will, but without an heir.
The Intestate Succession Act comes into effect when a person dies without a valid will or with a will but without an heir. This Act stipulates how the assets of the estate, net of administration costs and liabilities, are to be divided and applies to anyone who has assets from birth. These assets exclude assets that do not fall in the estate, such as pension money and insurance policies with beneficiaries.

The first obstacle is the appointment of an executor. This could also happen if a person leaves a valid will without an executor, or no provision was made for a substitute if an institution was not nominated.

Currently, if the gross value of an estate is less than R125 000.00 the Master of the High Court has the power to waive the formal appointment of an executor. He merely issues a letter of authorisation to the person who qualifies and there is no formal administration process. In other instances the Master will appoint the only heir or the person nominated in writing.

Another obstacle could be the furnishing of security by the nominated executor

When a person with a spouse (including a life partner as defined in the Civil Union Act) dies without a valid will and without children (including legally adopted children) or their descendants in the case of predeceased, the surviving spouse or partner is the only heir. If, for example, the testator leaves three children, the surviving spouse or partner will receive a child’s portion or R125 000.00, whichever is the larger. A child’s portion is calculated by adding 1 to the number of children – in this case one plus three children, i.e. four. If one of the children dies before the testator, his or her portion will devolve upon his or her descendants.

If a person leaves no spouse, but does leave living and/or deceased children who have left descendants, the net estate will devolve in equal shares upon the children and the descendants of the deceased children will receive their share. The net estate of a person who leaves no spouse and children or descendants of deceased children will devolve in equal shares upon his parents. If only one parent is still alive, one half will go to that parent and the other half to brothers and sisters, and if both parents are deceased, the entire estate will pass to the brothers and sisters.

If no provision is made in a will for alternate heirs, the provisions of the Intestate Succession Act might also apply. There is an exception for descendants of the deceased. If children were named as heirs without alternate heirs having been named, the inheritance will pass to the deceased children’s descendants in terms of the Wills Act.

Only if there is no spouse, descendants, parent, parent’s descendants or close blood relations, will the net assets of the deceased be deposited in the Master of the High Court’s guardian fund. If the assets are not claimed by an heir entitled thereto, they will be forfeited to the State after thirty years.

Bennie Neervoort B.Soc.Sc (UOVS) – P.F.C Makelaars / Brokers

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