Who gets your home, savings and possessions when you die? Without a valid will, the law may decide for you.

Dying without a valid will can leave families facing delays, additional costs and conflict at an already difficult time.

We spoke to Evashni Pillay of Debbie Pillay Attorneys and Sapna Maharaj of Wiesinger O’Dwyer Incorporated, who said a common misconception is that the State automatically takes a person’s assets if they die without a will. Instead, the estate is distributed according to the Intestate Succession Act 81 of 1987.

Maharaj said determining who inherits requires establishing the deceased’s living next of kin and their relationship to the deceased. If there is no spouse or descendants, parents and possibly siblings become relevant.

Pillay explained that where there is a spouse but no children, the spouse inherits, while children inherit equally if there is no spouse. Where both survive, the estate is divided according to ratios prescribed by the Act.

Establishing the rightful heirs can, however, complicate and delay the administration of an estate.
“Intestate succession does contribute to slowing down the process of finalising an estate as it requires more documentation and an investigation to ensure the legitimacy of the heirs,” said Maharaj.

There may also be additional costs, including a bond of security to protect the estate, heirs and creditors against maladministration by the executor. Its annual premium is determined by the estate’s value and remains payable until the estate is finalised.

Family relationships can also come under strain.

“The first complication is family conflicts which arise when unintended family members inherit a share in the estate,” said Pillay.

Disagreements can arise over property, the sale or transfer of assets and the appointment of an executor, potentially delaying an estate for years.

Minor children require particular consideration. Maharaj said assets inherited by minors through intestate succession may be administered through the Guardian’s Fund until they turn 18.

A properly drafted will can instead provide for a testamentary trust, with appointed trustees managing assets for their benefit.

Missing heirs can cause further delays, with executors required to investigate their whereabouts. Maharaj said if no blood relatives can be found after a thorough investigation, the estate may ultimately be forfeited to the State.

Both attorneys agreed that a valid will gives people greater control over who inherits, provision for minor children and the nomination of an executor.

This Wills Week, their message is clear: a will is not only about who gets what, it can make a difficult time considerably less complicated for those left behind.

The information in this article is intended as a general guide and should not be considered legal advice. Consult an attorney of your choice for advice relevant to your circumstances.