Consequences of not having a will

There are many reasons people give as to why they do not have a will. Examples include that they have too few assets; that they have no children or spouses; that they are tempting fate. The reality is that it is important to deal with the consequences of your death by leaving a valid will. This will save those you leave behind a great deal of emotional upheaval and possible conflict. It will give you control over whom your assets will devolve upon and what portion of the assets they will receive.

Intestate succession

Should a person die without leaving a will (dying intestate), the deceased’s estate will devolve according to the rules of intestate succession, which dictates who will inherit what share of the assets.

Simplistically, the rules dictate a fairly complicated but logical procedure to be followed for the devolving of your assets on your spouse (or spouses in a polygamous marriage) and/or your blood relatives. If one follows the inevitable trail of descendants as imposed, it is possible that in a family network a very remote relative, who had nothing to do with you while you were alive or a relative you may have been on bad terms with, could inherit your estate.

Furthermore, should the deceased leave no spouse or blood relatives, the assets will devolve on the state.

Your spouse(s)

It is worth specifically mentioning the intestate deceased who is survived by a spouse and children. The spouse(s) will inherit either R125 000 each or a child’s share (whichever works out to be the largest share) of the estate. This could result in financial hardship for the surviving spouse, for example, where the children are still minors, or the surviving spouse is retired and the children are self supporting.

Election of an executor

Without a will, you cannot nominate an executor or exempt the executor from lodging security. Besides the obvious fact that you would have no control over the identity of the executor, this could result in a substantial delay in the administration of the estate.

Minor children

If you have minor children, it is very important for you to have a will. This is the vehicle in which you can nominate the legal guardian(s) of your children and in which you can provide for a trust in terms of which the trustee(s) of your choice can administer assets for the benefit of your children.

Other important issues

• • If you have a will, you can exclude an inheritance from an heir’s marriage in community of property or subject to the accrual system

• • Those whom you would have considered to be worthy heirs, who are not recognised in law as intestate heirs, are unable to inherit

• • Complications could arise with assets such as the family home which will have to be divided between intestate heirs.

Realistically, the disadvantages of dying intestate cannot be ignored. Having a valid, considered will is the most practical and equitable option.

 

Source
www.justice.gov.za/juscol/…/201106_intestate-and-testate-succession.pdf