Trusts and intestate succession
I’ve had a few horror stories lately about people who died intestate.
One was a client for whom we prepared a Will, but she never signed it. She died at a young age and her family got nothing of her estate because her future husband had paid lobola and they were therefore deemed to be married. Fortunately, most of her wealth was held by a trust that we had set up for her and her family were beneficiaries of the trust.
Another was a professional lady who lived with a very close friend in the friend’s house. The friend died intestate and has no traceable family. So, what happens to the house? See (3) below.
What does the law say?
- If someone dies intestate (that is without leaving a Will), then their estate is distributed such that their spouse and the children get one share each except that the spouse gets a first bite of R250 000. Thereafter the kids get equal shares of the remainder up to R250 000 and once everyone has R250 000 they share equally. If any of the kids is under the age of 18, then their share of any money must be deposited in the Guardian’s Fund, which is administered by the Master of the High Court. And if you don’t know a seriously miserable, uncooperative bunch of people, try the Master’s office!
- If there is no spouse or children, then the distribution follows a complicated determination in accordance with the Intestate Succession Act.
- If no heir is found, then the estate becomes the property of the State.
- Can an unsigned Will be accepted? Technically no, but there have been cases where the courts accepted that an unsigned will truly reflected the wishes of the deceased. This was when the professional who drafted the will was able to satisfy the court that he had consulted extensively with the deceased before drafting the will and that he had simply formalized the wishes as communicated to him. There have been other cases where this argument failed.
Of course, if you wisely held your wealth in a trust, then the main purpose of the Will is to bequeath everything to your spouse or to the trust if you die together, and to appoint your succeeding trustees and the guardians of your children.
So, please, please, please, prepare a Will (we do it for nothing if you buy a trust from us) and then when you have it, sign it and return it to your executor, keeping a second original yourself.