Originally published: 15 February 2024 | Last updated: 19 February 2026
What Is Intestate Succession in South Africa?
The Intestate Succession Act 81 of 1987 decides how your South African estate will be distributed when you pass away without a valid Will. Your surviving spouse will receive the entire estate after which the descendants will receive their parts according to the established inheritance order. Common-law partners together with stepchildren and close friends do not receive any inheritance. A person needs to create a Will as their only method to ensure their estate reaches their designated beneficiaries according to their preferred instructions.
The legal system applies intestate succession when someone passes away without creating a valid Will. The Intestate Succession Act 81 of 1987 establishes a rigid system which determines how the assets of a deceased person will be divided between their living family members. The law dictates every aspect of asset distribution because the deceased person lacks the ability to express preferences about their assets.
How Is an Intestate Estate Distributed in South Africa?
The Master of the High Court selects an administrator to handle estate closure because this position replaces the executor that the deceased person would have chosen. The estate distribution system which operates without a valid Will produces higher costs and longer processing times while creating additional emotional strain for family members who survive the deceased.
| Scenario | How the Estate Is Distributed |
|---|---|
| Spouse, no children | Spouse inherits the entire estate. |
| Spouse and children | Spouse receives R250,000 or a child’s share (whichever is greater). The remainder is divided equally among the children. |
| Children, no spouse | Children inherit the entire estate in equal shares. |
| No spouse or children | Parents inherit equally. If one parent is deceased, the surviving parent and the deceased parent’s descendants share the estate. |
| No spouse, children, or parents | Siblings inherit in equal shares. If a sibling is deceased, their children inherit their share. |
| No surviving relatives | The estate is forfeited to the State. |
Who Does NOT Inherit Under Intestate Succession?
The Intestate Succession Act follows a specific hierarchy of heirs. The distribution depends on which relatives survive the deceased:
- Scenario
- Spouse, no children
- Spouse inherits the entire estate.
- Spouse and children
What Happens to Minor Children If Both Parents Die Intestate?
The surviving spouse receives R250,000 or the value of a child’s share which ever amount is greater. The remaining assets get distributed equally among all children.
Children, no spouse
How Does Marriage Type Affect Intestate Succession?
Married in Community of Property
Children inherit the entire estate in equal shares.
Married Out of Community of Property (With or Without Accrual)
No spouse or children
Civil Unions
Parents inherit equally. If one parent is deceased, the surviving parent and the deceased parent’s descendants share the estate.
Customary Marriages
No spouse, children, or parents
What Are the Problems with Dying Intestate?
Siblings inherit in equal shares. If a sibling is deceased, their children inherit their share.
- No surviving relatives
- The estate is forfeited to the State.
- The law prevents certain people who held value for the deceased from receiving any inheritance through intestate succession:
- Common-law (unmarried) partners: Your estate will not pass to your partner because South African law denies inheritance rights to common-law partners who have not married.
- Stepchildren: The Intestate Succession Act recognizes only biological children and children who have been legally adopted as valid heirs.
- Friends and charities: The law only recognises blood relatives and legally recognised spouses.
How Does LegalWills Offer an Affordable Solution?
Extended family beyond a certain degree: Distant relatives may not inherit if closer relatives survive.
Frequently Asked Questions
What does it mean to die intestate?
The court will select a guardian to care for children who remain under age when both their parents pass away without creating a Will. The person you get might not match your first choice. The children will receive their inheritance through the Guardian’s Fund which the Master of the High Court runs until they reach adulthood at 18 years of age. The children can use their inheritance money however they want after reaching adulthood because the funds have no spending limits.
Does my common-law partner inherit if I die without a Will?
A Will lets you choose a particular guardian while you create a testamentary Trust which contains specific rules that control when and how funds get released for education or at the age of 25. Multiple marriage types affect how property gets distributed when someone dies without creating a Will.
Can I partially die intestate?
The surviving spouse receives half of the joint estate because they married under community of property rules. The other half ; the deceased’s portion ; is distributed according to intestate succession rules. The spouse’s existing half is not affected.
How long does it take to wind up an intestate estate?
Each spouse owns their assets separately. The deceased’s estate is distributed according to the Intestate Succession Act. The surviving spouse who married through accrual can claim the value increase which occurred in their spouse’s estate throughout their marriage but this claim stays separate from the intestate succession process.
Can I challenge intestate succession?
The Civil Union Act 17 of 2006 grants civil union partners the same inheritance rights which married spouses receive under the Intestate Succession Act. The Recognition of Customary Marriages Act 120 of 1998 provides customary marriages with the same inheritance rights which apply to all marriages. The intestate estate gets divided equally between all spouses who share customary polygynous marriages.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
