While many may have a funeral policy and life insurance, the likelihood that the average person has a will is slim. That’s because Wills are often not given as much importance to secure your family’s financial future when you die as insurance and other policies. But a Will is possibly the most critical component in securing your family’s financial future when you die. Now let’s dive into what happens when you die without a will in South Africa.
What Happens When You Die Without a Will?
A Will isn’t necessary to divide your estate and belongings when you pass; however, if you don’t have a Will, how your money and belongings are divided falls to how the law prescribes.
The Act describes that if someone dies without a Last Will and Testament (Will), the way the assets of the deceased’s estates are divided will happen according to the Intestate Succession Act.
The purpose of the Act is to divide the estate among close relatives in order of relation.
If you’re survived by a spouse but no children, your spouse will receive the entirety of your estate. A spouse includes same-sex unions as prescribed by the Civil Union Act, a religious marriage, a polygamous marriage, and customary marriages.
If you have a spouse and children but die without a Will, your spouse will receive the same as a child’s share of the estate or R250,000 of your assets, whichever is more.
If you die and are only survived by your children, each child will receive an equal portion of your estate. If you have a spouse, your children will receive an equal share of the balance of your estate after your spouse has received their portion of your money and belongings.
If you die without children or a spouse, your extended family, your parents, siblings, aunts, and uncles will inherit from your estate according to how closely related they are.
If you don’t have parents, siblings, aunts or uncles to inherit your estate, your nearest relative will inherit your estate.
Unless you’ve been in a relationship with a girlfriend/boyfriend for a long enough period that the relationship becomes a common-law marriage, a girlfriend/boyfriend receives nothing when you die without a will.
Who Has Control Over Dividing Assets After Someone Dies Without a Will
When someone dies with a Will, they indicate who their estate’s executor will be; this isn’t the case when you die without a Will.
The executor is the person responsible for dividing the assets according to the wishes of the deceased and is usually someone the person trusts to handle their affairs. But, without a Will to indicate who this person will be, the responsibility of the executor falls to the Master of the High Court.
The heirs of the estate can nominate someone to handle the deceased’s affairs, but they may not always be the person the Master of the High Court decides to appoint. It’s usually here that dividing the assets can be delayed as family members fight over who the executor should be.
What Happens if the Deceased is Survived by Minor Children?
Possibly more important than the division of the assets is what happens to minor children when someone dies without a Will.
If you’ve ever seen this transpire when a single parent passes, you know this can be a devastating experience for children, as they are ultimately either placed in foster care or with a legal guardian appointed by the state.
If only one parent passes, the other parent typically becomes the legal guardian of the children. However, if the other parent isn’t active in the children’s lives or can’t be located, the state will determine who the legal guardian should be according to the state’s assessment of what is in the child’s best interests.
If assets are left for the children to inherit, but they are still minors (under 18 years old), these assets will be placed into the Guardian’s Fund, set up by the state and inherited when the child turns 18.
Can You Still Control How Your Assets are Divided If You Die Without a Will?
Without a Will, you forfeit all control over the division of your assets and what happens to your children, pets, and precious belongings, essentially allowing those appointed by the courts to handle your affairs. Sometimes the state’s decisions may go against what you wanted for your family and finances.
Can I Make My Own Will Without a Lawyer?
If you’re concerned that you won’t be able to draw up your Last Will and Testament because the cost of a lawyer is out of your budget, you can still create a legally binding will without the help of an attorney.
To create a legally binding Will, you need to be over the age of 16, and your Will must be signed by two independent witnesses, neither of whom can be the executor of your state.
Each page of the Will must be legible, and you must sign each page of the Will followed by your two independent witnesses, who must be older than 14 years old and of sound mind.
However, you can also create a will using one of the several free services available to South Africans.
FNB and Legal Aid offer free Will drafting services.
You can also create a will using Momentum’s free Will drafting service. The service asks you to answer a few questions and then drafts a printable Will for you to sign alongside your two witnesses.
Of course, if you have an intricate estate, either because of your assets or because of your family dynamics, you may want to consult with a legal professional to discuss your predicament. An attorney ensures that everything is seen to within your Will and that your assets are truly being divided according to your wishes when you pass.
Although it can be challenging to deal with, if you have children creating a will can help you secure their future in the event you pass while they’re minors.