General information, not legal or tax advice. Every estate is different: confirm with the Master's Office, SARS, an attorney or a fiduciary practitioner before you act.

Intestate succession explained

When a person dies without a valid will, or a will that does not deal with all their property, the Intestate Succession Act 81 of 1987 decides who inherits. The rules are fixed: the family cannot change them by agreement, although heirs can decline what they receive.
2 points we are still verifying
  • For deaths before 3 April 2024, a permanent life partner's position depends on court decisions (for example Bwanya v Master of the High Court, 2021); not calculated.
  • Half-brothers and half-sisters (s1(1)(e)(i)) and more distant relatives (s1(1)(f)) are explained but not calculated.

The rules in order

  1. Spouse, no descendants: the spouse inherits the whole estate (s1(1)(a)).
  2. Descendants, no spouse: the descendants inherit the whole estate, per stirpes (s1(1)(b)).
  3. Spouse and descendants: the spouse inherits a child's share or R250 000, whichever is greater, and the descendants share the rest (s1(1)(c)).
  4. No spouse or descendants, both parents alive: the parents inherit in equal shares (s1(1)(d)(i)).
  5. One parent alive: that parent inherits half, and the deceased parent's descendants inherit the other half. If there are none, the surviving parent inherits everything (s1(1)(d)(ii)).
  6. No parents: the descendants of the parents (brothers and sisters, nieces and nephews) inherit, split between the mother's and father's sides where there are half-siblings (s1(1)(e)).
  7. None of the above: the nearest blood relations inherit equally (s1(1)(f)).

What is a "child's share"?

The estate divided by the number of children who survived the deceased, plus children who died first but left descendants, plus one for the spouse (s1(4)(f)). With more than one spouse, the Master adds one for each spouse.

Worked examples

  • R1 200 000, a spouse and three children. A child's share is R300 000, which is more than R250 000, so the spouse gets R300 000 and each child gets R300 000.
  • R600 000, a spouse and three children. A child's share would be only R150 000, so the spouse gets R250 000 and each child gets R116 667.
  • R900 000, no spouse, two children alive and a child who died earlier leaving two children. The estate is split into three lines of R300 000. Each living child gets R300 000 and each grandchild gets R150 000 (per stirpes).

Spouses and life partners

  • A spouse married in community of property first keeps their own half of the joint estate. Only the deceased's half is divided.
  • Since 3 April 2024, a person in a permanent life partnership with reciprocal duties of support counts as a spouse (s1(1A)). For deaths before then, the position depends on court decisions.
  • In a polygamous customary marriage, each spouse inherits at least R250 000. If the estate is too small for that, the spouses share it equally.

Children

Children born outside marriage inherit from both parents (s1(2)). Adopted children inherit from their adoptive parents and not from their birth parents (s1(4)(e)). Stepchildren do not inherit unless adopted.

Try the who inherits calculator for your family.

Frequently asked questions

Is a will that was never signed properly still valid?

Not as it stands. A court can order the Master to accept it if it is satisfied the deceased intended it to be their will (Wills Act s2(3)). Until then, intestate succession applies.

Can an heir refuse an inheritance?

Yes. An heir can renounce (decline) an inheritance. If an adult descendant renounces a share while there is a surviving spouse, that share goes to the spouse (s1(6)). In other cases the share passes as if the heir had died just before the deceased, usually to the heir's own descendants (s1(7)). Take advice before renouncing.

What about customary marriages?

Since the Constitutional Court's Bhe judgment and the Reform of Customary Law of Succession Act, the Intestate Succession Act applies to customary-law estates too. Each spouse in a polygamous marriage is a spouse for intestate succession.

General information, not legal or tax advice. KayaLegacy gives general information based on the Administration of Estates Act, the Estate Duty Act, the Income Tax Act, the Intestate Succession Act, the Wills Act and guidance from the Master of the High Court and SARS. It is not legal or tax advice and does not create a professional relationship. Every estate is different: results are estimates, and the Master, SARS or the courts may reach a different answer. For advice on a particular estate, speak to the Master's Office, an attorney, a fiduciary practitioner or a tax practitioner.
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