Answer to a question from a reader

Why is it important to write a will?

The short answer

It is the only way for you to control who should look after your children or inherit your estate.

The long answer

A will (“Last Will and Testament”) is a legally binding document in which you can name who should care for your children and who inherits your estate; in other words, who should get your property, car, money, etc., when you die. If someone dies without a will, it means they have died intestate, and their estate will be distributed in terms of the Intestate Succession Act (Act 81 of 1987).

Only spouses and biological/adoptive relatives can inherit. In order of preference, beneficiaries of intestate estates will be as follows:

  1. Spouse of life partner of the deceased;
  2. Descendants of the deceased. Note that stepchildren do not count unless they were legally adopted by the deceased;
  3. Parents of the deceased (if there is no surviving spouse or descendants);
  4. Siblings of the deceased (if one or both parents are predeceased);
  5. Extended blood relatives (if none of the above applies);
  6. The state (if no blood/adoptive relatives).

If the deceased was married in community of property, the living spouse automatically owns 50% of the estate. They can inherit additional shares in terms of the will.

The Constitutional Court ruled on 31 December 2021 that life partners "in a relationship intended to be permanent" should be regarded as spouses in terms of inheriting intestate estates. If the deceased was in a recognised customary marriage, their partner is also a spouse for intestate succession purposes.

If the deceased was a husband in a polygamous union, the wives will inherit the estate in equal shares.

If the deceased had no biological or legally adopted children of their own, only the living spouse/s will inherit.

If the deceased had spouses and descendants, they will inherit the estate in equal shares if each wife inherits at least R250,000. If the estate is not large enough for this, only the wives (and not the descendants) will inherit the estate in equal shares.

If the deceased had children but no (living) spouse/s, the children inherit the estate in equal shares (regardless of their age or marital status). If there are no children, the estate will be inherited by the deceased’s grandchildren in equal shares.

In the event that there are no biological or adoptive relatives to care for minor children, they are likely to be absorbed into the orphanage or foster care system. 

This article by the Department of Justice discusses other inheritance scenarios: https://www.justice.gov.za/master/wills-is.html.

As you can see, the matter of intestate inheritance can get very complicated, so it is best to get advice from a legal organisation such as Legal Aid if you want to write a will. Legal Aid is a means-tested organisation; it assists people who cannot afford to pay a lawyer.

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

Please-Call-Me number: 079 835 7179

communications2@legal-aid.co.za

Wishing you the best,
Grethen

Answered on June 20, 2022, 10:31 a.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.