People are often very casual about drawing up a will, with excuses ranging from a lack of major assets to it being someone else’s problem, says Pieter Willem Moolman.
The last thing you want is for your loved ones to deal with the troubles attached to you passing “intestate”, that is, without a valid will.
Any person 16 years and older is free to draw one up in order to determine how their estate should be distributed upon death. Should a person die without a will, their estate will devolve in terms of the rules of intestate succession.
Contrary to popular belief, the estate will not be forfeited to the state or government. The law relating to intestate succession is governed by national legislation, particularly the Intestate Succession Act 81 of 1987.
The rules of intestate succession are simple and easy to understand. Briefly, what will happen is that your estate will be said to devolve upon your next of kin, which is your next direct family member.
It is very interesting that intestate succession is based primarily on blood relationships. Illegitimacy does not affect the capacity of a blood relation to inherit.
Therefore, if you were not married at the time of having a child or were born to unmarried parents yourself, you or your child would still be entitled to receive the same portion as if the parents were married.
Similarly, an adopted child is considered to be a descendant of the adoptive parents as if they were blood relations.
So, how does the process work once someone dies intestate?
In terms of the legislation mentioned, upon one’s death the family or loved one will have to approach the Master of the High Court, who may then appoint an executor. The latter administrates the deceased estate and is responsible for drawing up the “liquidation and distribution” account of the estate.
The executor’s duty is also to locate the will if there is one. If a will cannot be traced, even though relatives may be positive that one exists, the estate must be administered as if no will had been drawn up and according to the laws of intestate succession.
Similarly, if one’s will is found to be invalid, the estate is to be administered in terms of the same legislation.
If you require assistance in concluding a will, your financial planner, bank or an attorney should be able to assist you to ensure that your interests and those of your family and loved ones are protected.