Answer to a question from a reader

How will a deceased estate be split up if one spouse dies without a will?

The short answer

Under a marriage in community of property, the surviving partner will inherit their deceased spouse's share of the estate.

The whole question

Dear Athalie

If a husband fails to wrap up his deceased wife's estate before passing away himself, how will inheritance be affected if the wife did not leave a will but the husband did? They were married in community of property. Is the husband included as a beneficiary to his wife's half of the estate? They had five children together but only one was named as a beneficiary in the husband's will. Does this child inherit a share of his mother's estate, his father's share of the mother's estate, and the father's half of the estate?

The long answer

Firstly, the fact that the deceased wife died intestate (that is to say, without a will) does not override the marriage in community of property, so that the surviving husband would not be included as a beneficiary in her half of the estate. Now that the husband has also died, but has left a will, the 50% of the joint estate that belonged to her through the community of property should now be inherited by her children and the children of any deceased children of hers, through the Intestate Succession Act of 1987. His half would be inherited by the sole heir he has nominated in his will.

This heir would also inherit a child’s share of the deceased mother’s estate, so they would inherit half the estate as left by the deceased father, plus a child’s share in the deceased mother’s half.

What is not clear here is how the fact that the deceased mother’s estate was not properly wound up by the now-deceased father will affect the winding up of the newly deceased estate. 

In terms of the Administration of Deceased Estates Act 66 of 1965, a death must be reported to the Master of the High Court within 14 days. Once the deceased estate has been registered, the Master will either issue a Letter of Executorship if the value of the estate is greater than R250,000, or a Letter of Authority if its value is less than R250,000. The person who is issued the Letter of Executorship or Authority then has to settle all the debts of the estate before seeing that the heirs receive what is left over once the debts are paid. There are many tasks in this process, including advertising the death in the Government Gazette and a local newspaper to allow creditors with claims to come forward within the thirty-day period allowed.

There have been long delays in publishing the advertisements for creditors in the Government Gazette since the coronavirus, so there might well be extra difficulties and delays in settling the estate.

For all these reasons, it would be wise to seek legal advice about how to proceed.

Legal Aid is a means-tested organisation that must assist people who cannot a lawyer. You can contact them here:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on Feb. 4, 2022, 3:44 p.m.

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