What Happens if You Pass Without a Will?

We all understand that it is important to have a will in place. In fact, estate planning is a very important part of your financial security and an earlier article has been written about this on our blog. The situation still arises that people pass away without a valid will in place.



So what then?


If a person passes without a valid Will, the laws of intestate succession come into play. That is that the individual has died intestate (without a will).

There are a limited number of situations which may arise should one pass without a valid will. In all cases the Master of the High Court will nominate an executor, to administer the estate of the deceased individual.

Below are some of the situations which may arise and which one should be cognisant of:

1. Estate Divided According to Intestate Succession Act.


Any and all assets which form part of your estate, those being in your name, including bank accounts, securities and immovable property will be distributed in terms of the Intestate Succession Act 81 of 1987. The Act varies based on your relationship status at the time of your death as well as whether you have children or not. In most cases, estate is distributed into shares to your “heirs”, which could include your spouse, siblings, parents or other relatives. In cases where no relatives can be found, the entire estate is surrendered to the state.

2. What About My Partner?


Partners which are not married will not inherit anything, which means that your partner may be left with nothing. This is due to the fact that Intestacy laws only recognise relatives when distributing property. Unmarried partners will only inherit if this is stated in a Will.


3. And My Children?


Even though according to law, the estate is divided to relatives, if your children are under the age of 18, the proceeds of the estate will be held in the Guardian’s Fund until they turn 18. The trouble with this is this fund there are strict processes before anything will be released. The fund may also only be accessed for very specific purposes which makes accessing what may rightfully be theirs, very difficult for your children.


Passing without a Will may be financially devastating to your loved ones and children who may need to rely on the assets in your estate once you pass away. We highly suggest you consider estate planning and discuss the best way forward with your estate planning attorney.