Have you thought about what will happen to your children if you die without leaving a valid Will?
What will happen to your house? Your car? Cash in your bank account or investments?
Do you have children who are younger than 18 years old? How will their inheritance be protected?
First, let’s look at the term ‘no valid Will’ – this can mean any of the following scenarios:
- there is and was never a Will drafted, or
- a Will was drafted but never signed, or
- as I have experienced, the family are sure of the fact that you did indeed have a Will, but same cannot be found, or
- a copy or even a certified copy of the Will is available but the original signed Will cannot be located.
In terms of South African law, if a person dies without a valid Will, the Intestate Succession Act 81 of 1987 stipulates to who the assets of the deceased will be distributed and also in what portions. For example, if the deceased is survived by a spouse and children, the spouse will get R250 000 or a child’s share (whichever is greater) and the deceased’s children will get the balance of the estate in equal shares.
What happens if the deceased’s children are minors? In South Africa, a minor is a child under the age of 18 years.
- Should a person die with or without a Will, the deceased’s minor child still inherits from their estate.
- If the deceased person has fixed property, like a house, the house must be transferred and registered in the minor child’s name. The minor child or the Executor of the deceased’s estate cannot sell the house without the Master of the High Court’s approval of the sale.
- Where a minor child inherits cash from the deceased, the cash must be paid into the Guardian’s Fund.
- The Guardian’s Fund is administered by the Master of the High Court.
- When the minor child reaches the age of majority (18 years old) the child may claim the monies which they inherited from their deceased parent from the Guardian’s Fund.
- The minor child, with the assistance of their legal guardian, is also entitled to claim for things like school fees, medical fees or any other needs of the minor child from the Guardian’s Fund.
The Intestate Act involves having your assets transferred to persons as mentioned in the Act, resulting in your assets possibly devolving to persons who you may not have wanted to inherit any assets, not to mention said person having to inherit your entire estate. In the unfortunate event of yourself as well as your spouse dying simultaneously, you will die intestate and your estate will devolve upon your children (section 1(1)(b) of the Act).
To avoid complications with regards to your child’s inheritance it is advised that you consult a professional who can assist you with drawing up a Will to protect your children’s inheritance.
For further assistance please reach out to firstname.lastname@example.org