What happens if you die without a will in South Africa?

If you die without a valid will in South Africa, your estate is divided according to the Intestate Succession Act 81 of 1987. Your spouse and your children share first. If you leave neither, your parents inherit, then your brothers and sisters, then your nearest blood relatives, and only if nobody can be found does the estate go to the State. Your own wishes, however well known to your family, play no part.

This is called dying intestate. It also happens when a will exists but is invalid, when a will only deals with part of the estate, or when the people named in a will have all died before you. The estate still has to be reported to the Master of the High Court within 14 days, an executor still has to be appointed, and the winding up follows the same steps as any other estate. The difference is who ends up with what, and who gets to decide.

Who inherits, in order

The Act works through a fixed order. Each level only inherits if there is nobody at the level above.

Spouse only, no children. The spouse inherits everything.

Children only, no spouse. The children inherit everything in equal shares. If a child died before you leaving children of their own, those grandchildren step into their parent's place and share that portion.

Spouse and children. The estate is split between them. The spouse receives either a child's share, or the fixed amount that the Minister of Justice sets by notice, whichever is greater. A child's share is worked out by dividing the estate by the number of children plus one for the spouse. The children share whatever is left after the spouse's portion. The fixed amount is adjusted from time to time, so check the current figure with the Master or with an attorney rather than relying on an old number.

No spouse, no descendants. Your parents inherit equally. If one parent has died, that parent's half goes to their descendants, which means your brothers and sisters, including half-siblings, and their children if a sibling has died. If both parents have died, the estate is divided between the two sides of the family in the same way.

No parents, no siblings. The nearest blood relatives inherit, worked out by degree of relationship.

Nobody at all. The estate falls to the State. This is rare, and the Master will look hard for relatives before it happens.

"Children" includes adopted children and children born outside marriage. It does not include stepchildren who were never adopted. "Spouse" includes a partner in a civil union, a spouse in a valid customary marriage, and a spouse in a religious marriage that the courts have recognised for this purpose. Where a man had more than one customary wife, the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 provides that each wife counts as a spouse and shares accordingly.

Life partners and the widening definition of spouse

A partner you lived with but never married is not automatically a spouse for intestate purposes. The courts and Parliament have extended the position so that a partner in a permanent life partnership where the partners undertook reciprocal duties of support can inherit as a spouse. Proving that relationship is much harder than producing a marriage certificate. It usually needs affidavits, financial records and sometimes a court application, and the other heirs may dispute it. If you are in a long-term relationship without marriage, a will is the only reliable way to protect your partner. Read how to write a valid will.

Marriage in community of property comes first

If you were married in community of property, half of the joint estate already belongs to your spouse. Only your half is the deceased estate that gets divided under the Act. Your spouse therefore keeps their own half and then inherits a share of yours on top of it. If you were married out of community with accrual, the accrual claim is settled first, and then the balance is distributed.

A worked example

The figures are illustrative only.

Sipho dies at 47 without a will. He was married out of community of property to Lindiwe and they have three children, aged 20, 16 and 12. His estate, after debts and costs, is worth R2 000 000, made up of a house worth R1 500 000 with no bond, a car worth R200 000 and savings of R300 000.

There are three children plus a spouse, so a child's share is R2 000 000 divided by four, which is R500 000. Lindiwe receives R500 000 or the Minister's fixed amount, whichever is greater. At these values the child's share is the larger figure, so she takes R500 000 and each child takes R500 000.

Now the practical problems. The house is worth R1 500 000, but Lindiwe is entitled to only R500 000 in value. The executor cannot simply give her the house. Either the heirs sign a redistribution agreement in which Lindiwe takes the house and the children take the rest, with Lindiwe paying in the difference if she can, or the house is sold. The two minor children cannot receive their shares directly. Unless a court or the Master approves another arrangement, their cash is paid into the Guardian's Fund at the Master's office and held until they turn 18, with Lindiwe able to apply for maintenance and education payments out of it. If Lindiwe needs more than her share to live on, she may claim maintenance from the estate under the Maintenance of Surviving Spouses Act 27 of 1990, which is a separate process. Read how to claim maintenance from a deceased estate.

Had Sipho left a will giving the house to Lindiwe and the rest to the children in a trust, none of this would arise.

Who becomes executor

There is no nominated executor when there is no will, so the Master appoints one. The family, usually the surviving spouse and adult children, nominate someone at the time of reporting. The Master usually appoints the person the majority of heirs nominate, but can require them to provide security, which is an insurance-type bond, before issuing letters of executorship. Where the heirs disagree, the Master can call a meeting and decide. An appointed executor who is not a spouse, child or parent will usually have to provide security, which costs money each year, and this is one reason families often ask a bank or attorney to act. Read what an executor does and how much they charge.

What to do this week

1. Get certified copies of the death certificate, and the ID of the deceased and of the surviving spouse.
2. Search for a will. Check the home, the bank, the deceased's attorney, their employer and any insurer. A will found later replaces the intestate process, but only if it is valid and produced in time.
3. Report the estate to the Master within 14 days. Read how to report a deceased estate to the Master.
4. Agree on an executor among the heirs, or decide to use a bank or attorney.
5. List the assets and debts and stop debit orders that are no longer needed, but do not close accounts or sell anything before the executor is appointed.
6. If the estate is small, ask the Master whether it can be dealt with by letters of authority rather than a full executorship.

Documents to gather

The Master will need the original death certificate or a certified copy, the deceased's ID, the marriage certificate and antenuptial contract if any, the IDs of all heirs, a next-of-kin affidavit setting out the family tree, an inventory of assets and their values, a list of creditors, and the nomination of executor signed by the heirs. If the deceased was divorced, bring the divorce order and settlement agreement.

Realistic timeline

An intestate estate takes no longer than a testate one in principle, but in practice it often takes longer because heirs must be traced and must agree, and because minors' shares need extra approvals. A simple intestate estate with a spouse and adult children is typically finalised in about six to twelve months. One with minor children, a house that must be sold or redistributed, or a dispute about who counts as a spouse or child can take two years or more. Read how long it takes to wind up a deceased estate.

Common mistakes and what they cost

• Assuming the spouse gets everything. With children in the picture, the spouse may end up with a minority share and no automatic right to the house.
• Assuming a life partner gets anything. Without marriage or a proven permanent partnership, the partner can be left with nothing while distant relatives inherit.
• Paying money out before the executor is appointed. Whoever does it can be held personally liable to creditors and heirs.
• Not tracing all children. A child born outside marriage has the same rights as any other. An account that leaves one out can be reopened and the executor surcharged.
• Letting minors' shares drift. Money that should be in the Guardian's Fund or a court-approved arrangement, but is instead spent by a parent, is a debt that parent can be made to repay.
• Not signing a redistribution agreement. Without one, a house that nobody can afford to buy out is sold, often for less than the family thinks it is worth.

If you cannot afford an attorney

You do not need an attorney to wind up an intestate estate. The Master's office deals with the public directly and its staff will explain the forms. Small estates below the amount set by the Minister, which changes from time to time, can be administered under section 18(3) of the Administration of Estates Act 66 of 1965 through letters of authority, without a formal executor and without an executor's fee. Legal Aid South Africa on 0800 110 110 assists with deceased estate matters for people who pass its means test. University law clinics help with estates in most major centres. If the heirs would rather not do the work, a bank or trust company can be appointed executor and paid out of the estate. See what a wills and estates attorney costs for the figures, and use the executor fees and estate duty calculator to see what the estate would pay.

Frequently asked questions

Families ask most often about the house, stepchildren, foreign relatives and debts. The house is divided by value, not handed to whoever lives in it. Stepchildren who were not adopted do not inherit. Relatives abroad inherit in the same way as those here, though paying them takes longer. Debts are paid before anyone inherits. The answers below cover the rest.