Understanding The Consequences Of Dying Intestate: What You Need To Know


Sometimes, a loved one can pass away before they have time to plan for their death or make a last Will detailing how they would like their estate to be divided amongst those they leave behind. When this happens, we say they have died intestate. It is beneficial to know the consequences of dying intestate and how this might affect the distribution of your estate.

Dying intestate means you have left no valid Will when you die. In this instance, the provisions of Intestate Successions (Act 81 of 1987) stipulate how your estate will be divided. An estate includes all the assets and debt a person had acquired before death.

The Intestate Successions Act stipulates that the division of an estate should follow a set of rules which will depend on several factors. Knowing these rules will give you a better understanding of the consequences of dying intestate and how this will affect those you leave behind.


The 6 Rules Of Intestate Succession

The one benefit of dying intestate in South Africa is that a set of rules will guide the division of your estate. This division may not be to your liking, but it is all-encompassing and does try to benefit those left behind after you are gone.

The six main rules to intestate succession stipulate how your estate should get divided among your remaining living relatives.


1. If The Deceased Is Survived By Only Their Spouse(s)

In this instance, if someone has died intestate and left behind their spouse but no children, their spouse is entitled to inherit their entire estate. If they have more than one spouse, the estate will be divided equally among their spouses.

You might wonder what a spouse is according to the Intestate Successions Act. The Act considers the following types of marriage to be legitimate:

  • Anyone married to the deceased under the Marriages Act 25 of 1961
  • Anyone married to the deceased under customary law, as recognized under Section 2 of the Recognition of Customary Marriages Act 120 of 1998.
  • Anyone married to the deceased according to Muslim or Hindu rites.


The one consequence of this rule is that if you die intestate, your estate will go to your spouse even if you do not wish it to go to them. You might be separated or have hoped for a part of your estate to go to a friend, family member, organisation, etc. You will have forfeited the chance to have this followed through if you do not have a Will.


2. If The Deceased Is Survived Only By Their Child(ren)

If you die intestate and have a child(ren), but no spouse, your child(ren) will inherit your estate. If you have more than one child, your estate will be divided into equal portions and distributed amongst your children.

How will this rule affect children born out of wedlock and adopted children? Luckily, the Intestate Successions Act recognises adopted children and those born out of wedlock as beneficiaries. They will have equal rights to their biological children born when they were married to the other biological parent.

A consequence of dying intestate regarding children is that you cannot put any stipulations into effect regarding how and when your children inherit.


3. If The Deceased Is Survived By A Spouse(s) And A Child(ren)

In the case where a person dies intestate, and they are survived by both their spouse(s), and their child(ren), the division of estate will go as follows:

  • The spouse(s) will inherit R250 000 per spouse or a child’s share. If the child’s share is larger than R250 000, then the spouses(s) will inherit the larger amount.
  • The remainder of the estate will go to the deceased’s child or be equally divided if multiple children are involved.


You calculate a child’s share by adding up all spouses and children and dividing that amount into the estate. For example, if there are two wives and two children, that makes four. If the estate amounts to R2 000 000, then you will divide this amount by four which equals R500 000, which is the amount that each wife will inherit as it is a larger sum than the R250 000.


4. If The Deceased Has No Spouse And No Children, But Has Living Parents Or Siblings

If someone dies intestate but is not married and has no children, their parents will inherit their estate in equal shares. If only one parent remains and there are no biological siblings from the deceased parent, that parent will inherit the whole estate.

Suppose only one parent still lives, but biological siblings exist on the deceased parent’s side. In that case, the living parent will inherit one-half of the deceased’s estate, and the other half will get divided amongst the living biological descendants of the deceased parent.

Suppose the deceased has no living parents, but they do have living biological siblings. In that case, the estate will get divided into two representing each parent, and then each half will get divided between the biological siblings of that parent. The father’s children will inherit his portion of the estate, and the mother’s children will inherit her portion.

If you die intestate with no spouse or children and your parents are dead but have biological siblings from one of your parents and not the other, your estate will get divided between those siblings.


5. If The Deceased Has No Living Immediate Family Members

If you die intestate with no immediate living family, your estate will get divided amongst your close relatives, such as your aunts and uncles or cousins.


6. If The Deceased Has No Living Relatives To Claim Their Estate

Your estate goes into Guardian’s Fund if you die intestate with no relatives. Here it remains for 30 years. During that time, someone who believes they have a right to benefit from your estate may put in a claim to inherit, and the Master of the Courts will make a ruling on whether or not they have a legal claim.

If no one puts in a claim during this time at the end of the period, the monetary value of your estate will be forfeited to the State.

There are numerous consequences to dying intestate. One of the significant consequences for parents who die intestate is that they will not get the opportunity to put forward who they would like to take care of their children. In most Wills, a parent will designate a person or persons to care for their children in the event of their death. The Master of the Court will consider this suggestion when deciding where the children should go.

Dying intestate has many consequences for those that you leave behind. It also prevents you from having your say in the event of your death. Planning for the future and compiling a Will will ensure you have a voice even after dying. It will ensure that your assets get distributed according to your wishes, whatever those may be.

If you would like help looking to the future, our experienced Burnett Attorneys & Notaries team would gladly assist you in compiling a Will that will ensure your wishes get put to paper in the most comprehensive way possible. A professionally compiled Will can ease your mind as you will know that your estate will get distributed accordingly in the event of your death. Please do not hesitate to contact us to help you with this vital task.