If a person dies without a valid will, or if part of the estate is not validly disposed of by the will, that portion of the estate devolves under the Intestate Succession Act 81 of 1987.
The Act sets out the statutory order of inheritance. A surviving spouse and descendants receive priority according to the prescribed rules. Where there is both a spouse and descendants, the spouse is generally entitled to the greater of a child’s share or the amount fixed by the Minister, currently R250,000. Descendants inherit through the statutory per stirpes and representation rules rather than under a simple rule that every descendant always receives an equal share.
Since 3 April 2024, “spouse” for section 1 of the Act expressly includes a partner in a permanent life partnership in which the partners undertook reciprocal duties of support. A long-term unmarried partner should therefore not automatically be treated as having no intestate rights. Whether the relationship meets the statutory test depends on the facts.
Where there is no executor nominated in a will, the heirs or other interested persons may nominate someone, but the appointment is made by the Master. The heirs cannot simply disregard the Intestate Succession Act, although lawful redistribution arrangements may be possible after their legal entitlements have been established and subject to the applicable formalities and tax consequences.
See also: Wills FAQ: “What happens when a person dies without a will in South Africa?” | Who is the rightful heir to the estate?
Disclaimer: The information provided here is intended as general guidance only and does not constitute legal, tax, or financial advice. Every situation is unique, and legislation is subject to change. We invite you to reach out to our team at Wealth and Legacy Group for guidance tailored to your specific circumstances.