If you die without a Will anywhere in the world, each country has its own interpretation of how to distribute your estate. These are Intestacy Laws. It will not be what you intended as most will split the assets between your spouse and children, if you have them and will take a long time to instruct.
In South Africa, The Master of the High Court is the decision maker for an Executor (person in charge of your assets) and for the distribution of your assets. Intestate succession is based primarily on blood relationship, illegitimacy shall not affect the capacity of a blood relation to inherit. An adopted child is considered a descendant of his adoptive parents.
If the deceased is survived by a spouse or spouses, and has no living descendants, the spouse inherits the estate, if deceased was a husband in a polygamous marriage the surviving spouses will inherit in equal shares!
If the deceased is survived by a descendant, but not by a spouse, the descendant shall inherit the estate.
Where there is a living spouse or spouses and descendant/s, each spouse will inherit R250, 000 or a child’s share, whichever is greater, (this amount is fixed from time to time by the Minister of Justice). The children will get the balance of the estate, and if a child is deceased and has descendants, that child’s portion will go to their surviving spouse and dependents.
Any funds held for children are under the governance and supervision of the Master of the High Court through the Guardians Fund. The fund has a limited investment mandate and a cumbersome if not undignified procedure for access to funds.
If the deceased leaves no spouse or descendants, but both parents are alive, the parents shall inherit the estate in equal shares.
If the deceased has no surviving spouse or dependents but has only one surviving parent, the parent inherits half the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent shall inherit the estate.
If the deceased is not survived by spouse, descendant or parent but is survived by descendants of the deceased mother or father who are related to the deceased through the parents. One half of the estate divided equally among the mother’s descendants and one half of the estate divided equally among the father’s descendants.
If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, the other blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.
Where there are no relatives, and the assets have not been claimed by a legitimate heir after 30 years, the estate is forfeited to the state!
If you die intestate in other parts of Africa, there are different rules for each country. Most follow the distribution to be spouse only if there are no children, assets split between spouse and children, if there are. If there are no spouse and children then parents then siblings; then aunts/uncles then cousins. Again, if they cannot find anyone who is related to you, they will keep your money!
Other countries in Africa may take into account religion as many follow Muslim customs which can cause a problem for distribution depending upon the sex of the heir. Under Muslim rules, the males take priority. Some countries also follow Hindu laws which have only recently updated Succession Laws to equalise distribution to both girls and boys. Some have 4 legal systems in place to include common law, civil law, Muslim and Hindu. It can get very complex depending upon the beneficiaries also.
Some of Africa allows for a de facto spouse – live in partner – whereas most main countries around the world do not. Australia is a main exception. There are also tribal laws to consider, depending upon which country you hold assets and some countries have estate duties and/or inheritance taxes.
We generally do not check our estate position when we invest in new assets, no matter where the asset is situated and from experience, we do not check what instructions we should put in place if we pass away, to distribute the asset.
It is important to do so or your loved ones left to sort your affairs could get tied up in legal paperwork for a long, long time.
I am happy to help so feel free to contact me to write or update an existing Will, rules may have changed since your last review. You also may have accumulated assets in different countries so will need new Will/s for these jurisdictions.
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