What happens when you pass without a Will?

When a person passes on without a Will, they forfeit the privilege of deciding what should happen to their estate and the estate gets allocated in terms of pre-determined legislated guidelines, known as Intestate Succession. In other words, that person has no say in how the estate should be apportioned.

Vijay Morarjee, CEO of FNB Fiduciary, says “Having a Will in place should from part of broader legacy and financial planning, with specific focus on the estate planning piece. Evidently, this is a subject most people avoid because it involves death. However, not having a Will can be traumatic on the family; in some instances quite expensive. A worrying indicator is that a large number of South Africans pass on without a Will in place; this means they have no say on their estate. If a person dies without a Will, prescribed rules take over and operate through a set of legal guidelines on the deceased’s behalf as to how the estate will be divided” says Morarjee.

As mentioned, the rules of Intestate Succession come into effect in cases where a will was not left to guide the distribution of the estate.

Here are a few of the scenarios that could unfold:

  • If the deceased is married in community of property, the deceased’s spouse will receive half of the joint estate plus R250,000 or a child’s portion, whichever is greater. The child’s portion is calculated by dividing the remainder of the estate by the number of children and the number of spouses.
  • In the event that there is no surviving spouse, the estate is divided between the children of the deceased. If one of the deceased’s children predeceased him/her, then the children of the pre-deceased’s child (the deceased’s grandchildren) will inherit that child’s portion.
  • In the event that the deceased passes away in the absence of a spouse or children, the estate is divided equally between the parents of the deceased.

In all scenarios mentioned above, the Master of the High Court will nominate a person to administer the estate. Being an executor is an extremely important function and one may only hand pick their executor if a valid Will exists.

In addition, and in the absence of clear directives that can only be made in a Will, all inheritances for minors (person below the age of 18) will be placed in the Guardian Fund. The Guardians fund is administered by the Master of the High Court. Funds may only be accessed by the minor for specific limited purposes and the Master has implemented stringent requirements and processes in this regard to prevent abuse and fraud.

“It’s important to get expert advice when formulating a Will as there are various legal implications if the estate is not planned, provided for, and executed properly. At FNB Fiduciary we understand that a Will is probably the most important document you will ever sign and that if properly crafted, it ensures that the assets are divided according to the wishes of the deceased; thereby fulfilling the aspirations that were cherished for the next generation.” adds Morarjee.

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