28 March 2022

What Happens When You Die Without a Will?

Submitted by Joshua Maraney
What Happens When You Die Without a Will?

Dying without a Will could have detrimental consequences for your loved ones. If your familial structure is anything other than traditional, then the chances are high that your assets will not be distributed according to how you may envision they should be. According to South African law, if you die without leaving a valid Will, the provisions of the Intestate Succession Act, Act No. 81 of 1987, as well as other legislation which may be applicable based on your unique scenario, will govern how your Estate is distributed. You may want your Estate to be divided between your surviving Spouse, Children, Parents, and/or siblings according to a specific ratio. However, according to the Intestate Succession Act, your Estate will devolve according to a very specific ratio and according to a specific hierarchy.

Dying Without a Will Renders Your Wishes Void

When there is no Will at the time of death, the Intestate Succession Act provides the hierarchy (Per Stirpes) according to which your Estate will devolve, starting with the legally married surviving Spouse and Children. However, should there be a divorce order in place, a maintenance order, or perhaps Children born outside of the current marriage, then several other legislations are considered. It is the Executor’s role to enforce these legislations and the Executor cannot change it.

Ideally, considering the provision of the Intestate Succession Act, the surviving legally married Spouse will inherit R250 000 or a child’s share whichever is greatest, along with the children, who will inherit a child’s share, or a portion of what is left after the Spouse’s share. Should there be no Spouse or Children, the Intestate Succession Act then takes into consideration the surviving Parents of the deceased. Any wishes you might have had for your legacy, be it to pass your legacy on to loved ones who aren’t relatives or perhaps to a charity, no longer matter.

One of the important aspects, over which you can exercise control should have a Will, is who the Executor will be. If you have not expressed this within a valid Will, your surviving relatives may nominate the Executor of their choice, a decision which is finalised by the Master of the High Court. Consequently, the wrapping up of your Estate may be delayed, resulting in additional costs and unnecessary frustration for your family.

Should you pass away without a Will and have no Heirs who could possibly inherit, then all your assets will be liquidated and paid into the Government Guardian’s Fund. And if no one lays a claim to it within 30 years, then it forfeits to the State.

A Will Safeguards Your Children’s Well-Being

 The reality that a Will is important for both the deceased and his/her Heirs can never be over-emphasised. This becomes so much more important when Children are involved. What happens to your children in this case? If there is a surviving parent, regardless of whether they are the surviving spouse, he/she will, automatically, become the children’s legal guardian. Complications arise when there is no surviving Spouse or Parent to become your Children’s guardian. The Master of the High Court then appoints a Guardian, and your children might be placed in the care of someone they do not know, or who might turn out to be hostile and only interested in what they will gain from being a Guardian. Without a Will in place, your Children will only receive their inheritance once they come of age at 18 years old. In the meantime, the money will be kept in the Government Guardian’s Fund or be paid to the Guardian.

An Outdated Will Could Be Worse Than Having No Will At All

South Africans commonly draft their Wills and then forget to update or amend them. This can be even worse than not having a Will in the first place. What if you no longer have a relationship with your Heirs or perhaps some of them have passed on before you. What then? It is important to note that strained or severed relationships do not invalidate a Will that you have not updated or amended. If you ex-Spouse is named as a Beneficiary more than three months since the divorce is finalised, then they remain a Beneficiary. Therefore, your assets could be awarded to people you do not intend to have as your Heirs anymore.

Having An Invalid Will Is Like Having No Will At All

Contrary to popular belief, the validity of a Will does not solely depend on whether the Will has been drafted. In fact, people often think that their Will is valid, only to find out that their assets will be distributed according to the Law of intestate succession, because their Will is actually not valid.

Here are a few factors which make a Will invalid:

The person who the Will is being drafted for is not over the age of 16The Will has not been reduced to writingThe Will is not legible (i.e., if the Will is handwritten)Each and every page of the Will has not been signedThe witnesses are not competent and independentWitnesses are Beneficiaries who have been mentioned in the Will

Therefore, it is extremely important that you have ticked all the boxes, which ensure the validity of your Will, to make sure that your final wishes are carried out in the way you’ve intended them to be.

 Let Your Dying Wishes Get Carried Out Through a Capital Legacy Will

Failing to draft a Will while you are alive is a recipe for disaster when it comes to the distribution of your Estate. Your wishes may not be fulfilled if you have not written them down in the form of a legally valid Will. Secure your heirs’ inheritance by drafting a Will with people who will take every precaution to ensure that the contents of your Will is not contradictory, is aligned with what South African legislation allows, and is valid. The expert Will consultants at Capital Legacy will help you to create one that is perfect for you.

This article was first published at https://www.capitallegacy.co.za/what-happens-when-you-die-without-a-will/

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