What Happens if You Die Without a Will? The Consequences of Intestate Succession
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Despite its importance, many South Africans do not have a valid will in place, leaving their families exposed to legal uncertainty and emotional strain when tragedy strikes. Without one, the law decides how an estate is divided — and the outcome is not always what the deceased would have intended.
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“Many people believe that if they don’t have a will, things will simply work themselves out for their families,” says Stacy Rouchos, Attorney and Estate Planning Specialist at Hobbs Sinclair Advisory. But the reality is very different.
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South African law follows a strict framework for what happens to your estate if you die intestate —that is, without a valid will — and it can leave loved ones compromised.”
When someone dies without a valid will, their estate is distributed according to the Intestate Succession Act. The law prescribes a rigid order of inheritance:
· Spouses and children inherit in equal shares.
· If there is no spouse, children inherit equally — with adopted children treated exactly the same as biological children.
· If there are no children or spouse, the estate is shared equally between the deceased’s parents.
· If a parent has already passed away, their share goes to their surviving children — typically the deceased’s brothers and sisters.
· In the absence of a spouse, children, or parents, the estate passes to the nearest blood relative — often grandparents.
“This order might sound simple enough,” explains Rouchos, “but it doesn’t account for modern realities like life partners who aren’t legally married. If you’ve built a life with someone but never formalised the marriage, intestate succession does not recognise that bond. Your partner won’t automatically inherit anything.”
Rouchos warns that relying on intestate succession can lead to unintended hardships and conflict.
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· Unrecognised partners: Cohabiting partners have no automatic right to inherit. They may pursue maintenance claims, but this often involves lengthy court proceedings.
· Financial strain on surviving spouses: Because children and spouses inherit equal shares, surviving spouses may be forced to sell assets to cover children’s entitlements.
· Guardians’ Fund complications: A minor child’s inheritance may be placed in the State’s Guardian’s Fund, which is notoriously difficult to access until the child reaches legal majority.
· Family disputes: With no clear guidance on sentimental items like jewellery or heirlooms, heirs may clash. “In some cases, executors are left with no choice but to sell treasured family items to divide the proceeds,” says Rouchos.
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“These scenarios are not just legal technicalities, they are real-life situations that cause heartbreak and financial strain for families who are already grieving.”
A valid will eliminates these uncertainties, ensuring that estates are wound up efficiently, fairly, and in accordance with personal wishes. “By putting even a simple will in place, you can avoid unnecessary conflict, protect your spouse and children, and make sure your assets are distributed the way you want,” says Rouchos. “It’s a
small act of foresight that makes a massive difference to the people you leave behind.”