What Happens If Someone Dies Without a Will?

When someone dies without a will, families are often left grieving and confused at the same time. Who gets the house? What about the car, the pension, the children? This is very common, and the law does have an answer.

What is happening

Dying without a valid will is called dying "intestate". In South Africa, the Intestate Succession Act 81 of 1987 then decides who inherits. The estate still has to be reported to the Master of the High Court and an executor still has to be appointed to pay debts and share out what is left.

In broad terms, the law works like this:

• If there is a spouse and no children, the spouse inherits everything.
• If there are children and no spouse, the children inherit in equal shares.
• If there is a spouse and children, the spouse gets a child's share or a set amount fixed by the Minister, whichever is more, and the children share the rest.
• If there is no spouse and no children, parents, then brothers and sisters, then more distant relatives inherit.

Children born outside marriage and adopted children inherit on the same basis as other children. A spouse in a recognised customary marriage counts as a spouse, and the Reform of Customary Law of Succession Act applies these rules to people who lived under customary law, including protection for more than one spouse. The legal position of an unmarried life partner is more complex and has been changing through the courts, so get advice if this applies to you.

Remember that some things do not go through the estate at all. A pension or life policy with a named beneficiary is usually paid straight to that person, and the family home may be owned jointly.

Is this you?

• A parent, spouse or partner has died and no one can find a will.
• Relatives disagree about who should get the house or other property.
• You were living with the person but were not legally married.
• The person had a customary or religious marriage and you are unsure how it counts.
• There are children under 18 who may inherit.
• You have been told you must "go to the Master" but do not know what that means.

30-second self-check

Answer yes or no to each question.

• Has someone close to you died in the last few months?
• Has no valid will been found?
• Is there property, a vehicle or a bank account in their name?
• Are there children under 18 who may inherit?
• Is there disagreement in the family about who should get what?
• Are you unsure whether you count as a spouse or heir?

0-1 yes: You may just need basic information. Keep documents safe and read up on the next steps.
2-3 yes: Start the estate process soon and get guidance so nothing is missed.
4 or more yes: This is a situation where early advice can prevent family conflict and loss. Speak to someone qualified this week.

What you can do next

• Today: Look carefully for a will: at home, with the bank, with an attorney, or at the Master's office. Keep the death certificate, ID and any policy papers together.
• This week: Report the death to the Master of the High Court in the area where the person lived. The law expects this within 14 days. Smaller estates can often go to a local magistrate's office.
• This month: Agree as a family who will act as executor, or ask a qualified person to do it. Do not sell, move or divide property until the executor has authority.
• If there are minor children, money they inherit may go into the Guardian's Fund at the Master's office until they turn 18, unless a trust exists.
• Look after yourselves too. Grief and money stress together are heavy, and it helps to talk.

Your tool

Estate Planning Readiness - after going through a loss, many people want to make sure their own family is protected. This check shows which parts of your own plan are missing.

When to get professional help

Get help if the estate includes property or a business, if relatives disagree, if there is a customary, religious or unmarried partnership, or if debts may be higher than assets. Also get support if grief is making it hard to cope day to day.
Who can help: attorney_estates, fiduciary_estate, legal_aid_sa, grief_specialist, counsellor

Getting help in South Africa

The Master of the High Court, part of the Department of Justice (justice.gov.za), oversees all deceased estates and runs the Guardian's Fund. Legal Aid South Africa (legal-aid.co.za) may assist people who qualify. University law clinics and community advice offices often help families with small estates. Check that any attorney you use is registered with the Legal Practice Council at lpc.org.za. For grief support, the Cleared Mind 24-hour Careline is 0800 212 146.