No Will = Intestate Succession 
By T Tannous, Member of FISA, FPSA
Director Millers Inc, George

The unfortunate tendency amongst the public at large, when trying to draft a Last Will and Testament themselves, in order to have some sort of peace of mind when it comes to the devolution of their world-wide belongings, often has devastating consequences for their loved ones.

In order to try and prevent these circumstances, The Law Society of South Africa (LSSA), in conjunction with the Department of Justice, have been encouraging attorneys to position themselves as the premier providers of Wills and Estates services to the public with the purpose of persuading members of the public to consult with an attorney to have a basic and valid Will drafted.  This was done with great success in the past and Millers Attorneys have been taking part in Wills Week since the inception of the initiative.

However, should an individual pass away without leaving a Last Will and Testament, or should he/she leave a valid Will which is only applicable to certain of his/her assets, the estate of the individual will be dealt with in accordance with the rules of the Intestate Succession Act 81 of 1987 (provided the estate is solvent).  This situation is also referred to as division upon intestacy.

In this regard, the following basic rules or principles apply:

• The surviving spouse and children of the deceased will always benefit first.

• Should there be no surviving spouse or no descendants, then the extended family of the deceased such as parents, siblings, nieces, nephews, aunts and uncles will qualify to inherit from the deceased's estate.

• Intestate succession is limited to blood relations, with the only two exceptions being the surviving spouse and adopted children.

• When ascendants (i.e. parents, grandparents, etc) do come into play, a 50/50 split is always done between the parents of the deceased before any further division is done.

• Movable property (i.e. household furniture, vehicles, shares etc) devolves according to the law of intestate succession of the country where the deceased was domiciled at the time of his death and immovable property (i.e. fixed property) devolves according to the intestate law of the country where it is situated.
 
Where the deceased died intestate, a nomination by interested parties, such as the surviving spouse and children (or those who are available), must be lodged with the Master of the High Court in order to nominate an executor to administer the intestate deceased estate.

Any person related to the deceased within the second degree of blood relation, or an attorney, or an accountant or a trust company can be nominated as executor but of these persons, only the surviving spouse, parent or child is normally exempt from furnishing security. It is therefore preferable for the surviving spouse, parent or child to be nominated to avoid the expense and inconvenience of obtaining a bond of security.  In these circumstances it is recommended that the family member executor then appoint an agent (for instance an attorney) to administer the deceased estate on his/her behalf.

No person should be without a proper and valid Will.  The public are welcome to contact one of our fiduciary specialists to assist with the drafting of a basic Will during Wills Week, free of charge.

Disclaimer: The contents of this article is for general information purposes only.  It is not intended to constitute any advice or to be regarded as an academic article.