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Dividing Estates – What happens when an individual doesn’t have a Will.

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When a person passes away without leaving a valid will behind, the family of the deceased is left without a guide of how the estate will be divided and this, many times causes a panic amongst those left behind. Questions arise such as: What will happen to the assets now? Will it be forfeited to the state?

The objective of this article is to break down exactly how an intestate estate will be divided.

The Intestate Succession Act 81 of 1987 (here after referred to as “the Act”), sets out how the estate of a person passing away without a valid Will, will be divided amongst the family of the deceased.

The first step will be determining whether the deceased was married. If the deceased was married and had no children, the spouse will inherit the entire estate.

If the deceased was unmarried (divorced, widower or never married) the children of the deceased will inherit the entire estate in equal shares.

In the instance where the deceased left a spouse and children behind, the division of the estate becomes trickier. The estate will then be divided amongst the spouse and children. Bear in mind that the matrimonial property regime is dealt with first. Which means if the deceased was married in community of property, half of the estate will be awarded to the surviving spouse. The other half of the estate will thus be subject to the Act. The surviving spouse will inherit R250 000 or a child’s share, whichever is greater and the residue will be divided in equal shares amongst the children. A child’s share is the monetary value of the estate divided by the number of children plus the number of spouses.

A practical example:

The deceased has 3 children and one wife, the value of the estate amounts to R1 500 000 (one million five hundred thousand rand) and the parties were married out of community of property.

The child share would therefore be R1 500 000 divided by 4.

                                                            = R375 000.00

The wife would then inherit R375 000.00 as this is greater than R250 000.00 and the residue would be divided in equal shares amongst the children, each child will inherit R375 000.00.

In the event where the deceased has 2 spouses the child share would be determined based on 3 children + 2 wives. If the estate does not have sufficient assets to provide each spouse with R250 000 the estate will be divided amongst the spouses in equal shares.

If the deceased was unmarried and have no children, but is survived by both parents, the parents will inherit the estate in equal shares. If only one parent is alive, that parent will inherit a half share and the children of the other parent will inherit the other half share.

If the deceased was unmarried, with no children nor parents, the children of the deceased’s mother will inherit half share and the children of the deceased’s father will inherit the other half share.

If the deceased was unmarried, with no children, no parents alive, no other children of parents then the other blood relations of the deceased, who are related to in the nearest degree shall inherit the estate in equal shares.

In the light of the above one can be sure that the assets of the deceased passing away without a will, will not be forfeited to the state. The Laws of Intestate Succession can be completely avoided by having your Will drafted. You can be the maker of your own succession.

We at Faure & Faure Inc. are ready to assist you with any further questions that you might have regarding the drafting of your Will. Remember that Will’s Week is coming up between 16 and 20 September 2019. During this week, Faure & Faure Inc. will assist with drafting of a Will, free of charge.

However, at Faure & Faure Inc. every week is Will’s Week.

Article by Lusharno Wells, Attorney at Faure & Faure Inc.

For more information email contact@faurefaure.co.za

Lusharno Wells | Attorney | Faure & Faure Inc Lloyd Fortuin Attorneys. Paarl. Specializing in the drafting of wills and the administration of estates

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