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Amanda Visser: If you die without a will, your assets will be uniformly distributed by the state. The rules of intestate succession law are very specific and can have undesirable consequences.
My name is Amanda Visser. Today I'm joined by Dr Eben Nel, National President of the South African Institute of Trustees, to talk about some of the implications of dying without a Will. Eben, could you briefly tell us about intestate succession law?
Eben Nel: Amanda, Intestacy law determines who a deceased person's heirs are, unless the deceased did not determine the heirs themselves by means of a valid will. A will allows a person to name beneficiaries and heirs, as well as an executor, guardian for minor children, and, for example, a trustee if a trust is established for the benefit of a minor. .
Currently, when a person dies without a valid will, heirs are determined according to the rules of intestate succession, specifically the Intestate Succession Act.
An executor, administrator, or guardian is appointed by the President of the High Court or another court, or by the guardian, as the case may be, without the input of the deceased. So it's not ideal.
The rules of intestate succession are fixed and no one can change or interfere with them. Thus, intestate succession operates on concepts such as blood relations, descendants, ancestors, and collateral lineage. Collateral can be either whole blood or half blood. This means that the deceased had two or one ancestor in common with the heir.
Now, if you don't have a will, it's important to at least understand what these concepts mean and what the implications are if you die without one.
Amanda Visser: Is there a specific formula they use between all the categories you just mentioned?
Eben Nel: Simply put, we always say first down. It also has meaning for your children. If there are no children, the child will be dependent on the parents.
If you don't have parents, then [if] no descendants [and] There are no ascendants or ancestors. In that case, move on to collaterals.
And from there it can be passed on to your siblings and even your siblings' children.
Yes, there is a formula set by law.
Amanda Visser: Please explain “collateral” in more detail.
Eben Nel: As I say, collateral can be half-blooded or pure-bred. [relatives]. That means your brothers, brothers and sisters, or half-brothers and sisters who share only one ancestor with her.and their brothers or sisters too [deceased], [it goes] Children and even grandchildren.
Amanda Visser: Thanks for explaining, Eben. Does real estate cost money?
Eben Nel: Amanda, being intestate doesn't necessarily mean it's more expensive. However, the process may take longer and ultimately cost more.
The process is a little different as there is no Will to submit to the Chief Justice of the High Court. It can be accepted by the Chief Justice of the High Court and used to instruct the executor to administer the estate in accordance with the will. Therefore, both the master and the executor will immediately review the situation regarding intestacy.
You will need to determine the exact composition of your family, and possibly the broader family structure.
And since no executor has been named, someone has to report this estate.
Anyone who is interested can make a report and must share family trends with the master and reveal the family structure. From there, the master will decide who to appoint as executor.
Amanda Visser: How does he decide that? Who then becomes the enforcer?
Eben Nel: This can be quite a process and can be very time consuming.
The master usually expects the family to name someone as executor, and the process can take several weeks, sometimes several, as not all family members or intestate heirs will necessarily agree. It may take a month.
There may even be competition between them as to who should be appointed because they cannot trust someone or feel that they will be biased in the process.
However, the Master will usually expect that all heirs must agree on the rules of intestate succession. If they cannot agree and a conflict arises, the Master has the power to appoint such person as the Master considers appropriate to do this. However, it is a last resort for the master, which is why it takes so long to appoint an executor.
Amanda Visser: What happens if the family does not agree with the division of assets?
Eben Nel: Well, the rules of intestate succession are clear, so there usually shouldn't be any disputes, and no one has the power to overturn them.
However, if there is a dispute over whether or not they are blood relatives, some kind of evidence will be required.
If someone claims to be a family member or associate of the deceased, they will need to prove it if there is a dispute.
Otherwise, the Master can give instructions to the Executor if there are any questions about how to deal with the Executor or how to interpret the actual case. However, as a last resort, if someone is not satisfied with the way the Master or Executor has dealt with the matter, they must appeal to the High Court for a final decision.
Amanda Visser: On that point, Eben, are there any practical implications that make things so complicated and difficult?
Eben Nel: yes. The first problem is that without a valid will, as I explained earlier, there may be delays in reporting the estate and appointing an executor.
Those applying for appointment must have the support of the deceased's heirs. Otherwise, the Master will not appoint him or her. And often there are competing parties.
So I think that's really the first hurdle to get over. Even if you ask a trustee to take care of this process, you will still face the same problems with naming an heir, and the missing descendants will have to inherit despite not having a good relationship with the family. There will be difficulties in some cases.
So, for example, if you have a family member who is an heir in terms of intestacy rules and that person cannot be found, or that person refuses to cooperate and refuses to sign the nomination document, that is the first , I think the biggest challenge we have with regards to intestate succession is this.
The second issue is such as if the deceased was married, where the surviving spouse is only entitled to the child's share of the intestate estate; You may find yourself in an inadequate and very difficult financial situation.
Just because you're a spouse doesn't mean you can inherit everything.
Unless the estate is less than R250,000, the child will inherit only the same portion as the child will inherit.
This R250,000 is the legally recognized cut-off figure and the surviving spouse's share will not be less than R250,000 unless it is clear that the value of the entire estate is less than R250,000.
However, for example, if an estate is worth R2 million and there are three children, the surviving spouse will receive R500,000 of the R2 million. I hope this example is simple enough. So it obviously can have a very devastating effect on the surviving spouse.
Amanda Visser: Does it cost money to create a will? Why not make a will?
Eben Nel: That's a very good question. It is often very difficult to understand why people are so reluctant to make a will.
Many institutions and private trustees are ready to prepare a suitable Will for a nominal fee of a few hundred rands.
We sometimes say that it is cheaper to have a will drawn up than to feed the family a meal at a fast food restaurant.
However, there is some resistance to this.
Professionals usually expect to be named as directors, but if they are not, they may say “I will not make a will.'' But like I said, it's really money well spent and most of the time it doesn't cost more than a few hundred rand.
However, drafting a proper will is very important. Part of the reason for this is that the process can be very complex and extensive, particularly where the estate exceeds R250,000, so it is very important to appoint a professional executor.
Amanda Visser: Why should I not make my own Will?
Eben Nel: I think people may be underestimating the potential technicality of wills. It's all about language. All terms in a will have meaning, but not necessarily the meaning you would expect in legal terminology.
A will does not have to be complicated, but it is best to keep it as simple as possible depending on the circumstances.
However, sometimes the family structure is of such a nature, and sometimes the testator's wishes are not as simple as people think. And its complexity is not necessarily directly related to the size of your estate. Therefore, some people may think that because my assets are small, there is no problem.
However, the size of the estate does not determine the potential complexity of the family structure or the nature of the assets.
Therefore, the important thing is that it must be technically correct. Without the necessary expertise and legal knowledge, you can make technical mistakes in your will. After you die, no one else steps in and says, “The testator actually meant something else,” or, “This wasn't the way he wanted us to interpret it.” I can't afford it.
I think it is dangerous not to ask a professional to draw up your will, as it will be interpreted from the perspective of inheritance rules. This happens often because it's not a good idea to copy someone else's will or copy and paste from another will and think it's appropriate for your situation. It happens.
Amanda Visser: There it is. thank you. It was Dr Eben Nel, National President of the South African Institute of Trustees, who shed light on the impact of not having a will.
Provided by the Fiduciary Institute of South Africa (Fisa).
