Originally published: 15 February 2024 | Last updated: 22 February 2026
What Is Intestate Succession in South Africa?
Intestate succession is the legal process that applies when a person dies without a valid Will. The Intestate Succession Act 81 of 1987 sets out a strict formula for distributing the deceased’s estate among surviving relatives. The deceased person has no say in how their assets are divided — the law decides everything.
The Master of the High Court appoints an administrator (rather than an executor chosen by the deceased) to wind up the estate. This process is typically slower, more expensive, and more stressful for surviving family members than administering an estate with a valid Will.
How Is an Intestate Estate Distributed in South Africa?
The Intestate Succession Act follows a specific hierarchy of heirs. The distribution depends on which relatives 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?
Several categories of people who may be important to the deceased receive nothing under intestate succession:
- Common-law (unmarried) partners: Regardless of how long you have lived together, your partner has no automatic right to inherit from your estate.
- Stepchildren: Only biological or legally adopted children are recognised as heirs under the Intestate Succession Act.
- Friends and charities: The law only recognises blood relatives and legally recognised spouses.
- Extended family beyond a certain degree: Distant relatives may not inherit if closer relatives survive.
What Happens to Minor Children If Both Parents Die Intestate?
If both parents die without a Will, the court appoints a guardian for minor children. This may not be the person you would have chosen. The children’s inheritance is paid into the Guardian’s Fund, managed by the Master of the High Court, and released to them when they turn 18 — with no conditions or restrictions on how the money is spent.
A Will allows you to nominate a specific guardian and set up a testamentary Trust with conditions, such as releasing funds only for education or at a later age like 25.
How Does Marriage Type Affect Intestate Succession?
Married in Community of Property
If married in community of property, the surviving spouse already owns half of the joint estate. The other half — the deceased’s portion — is distributed according to intestate succession rules. The spouse’s existing half is not affected.
Married Out of Community of Property (With or Without Accrual)
Each spouse owns their assets separately. The deceased’s estate is distributed according to the Intestate Succession Act. If married with accrual, the surviving spouse may have a claim to the growth in the other spouse’s estate during the marriage, calculated separately from intestate succession.
Civil Unions
Partners in a civil union registered under the Civil Union Act 17 of 2006 have the same inheritance rights as married spouses under the Intestate Succession Act.
Customary Marriages
Customary marriages recognised under the Recognition of Customary Marriages Act 120 of 1998 grant the same inheritance rights. In polygynous customary marriages, each spouse is entitled to a share of the intestate estate.
What Are the Problems with Dying Intestate?
Dying without a Will creates several practical problems:
- Slower estate administration: The Master must appoint an administrator, which adds weeks or months to the process.
- Higher costs: Administrator fees, legal fees, and potential disputes increase the cost of winding up the estate.
- Family disputes: Without clear instructions, disagreements among heirs are common and can lead to costly litigation.
- Unintended beneficiaries: Assets may pass to relatives you had no intention of benefiting.
- No guardian nomination: The court decides who cares for your children.
- No provision for dependants: People who depended on you financially (such as elderly parents or common-law partners) may receive nothing.
How Does LegalWills Offer an Affordable Solution?
LegalWills.co.za provides an affordable, legally valid alternative to traditional attorney-drafted Wills. The online platform guides you through creating a comprehensive Will that complies with the Wills Act 7 of 1953. You can nominate beneficiaries, appoint an executor and guardian, and set up testamentary Trusts — all for a fraction of what a lawyer would charge. Your Will can be completed in about 20 minutes and updated at any time.
Frequently Asked Questions
What does it mean to die intestate?
Dying intestate means dying without a valid Will. Your estate is then distributed according to the Intestate Succession Act 81 of 1987, following a fixed legal formula rather than your personal wishes.
Does my common-law partner inherit if I die without a Will?
No. Under South African law, common-law (unmarried) partners have no automatic right to inherit from an intestate estate. You must include them in a Will for them to receive anything.
Can I partially die intestate?
Yes. If your Will does not cover all your assets, the remaining assets are distributed according to intestate succession rules. This is called partial intestacy.
How long does it take to wind up an intestate estate?
An intestate estate typically takes 6 to 24 months to wind up, compared to 3 to 12 months for an estate with a valid Will. Disputes among heirs can extend this timeline significantly.
Can I challenge intestate succession?
In limited circumstances, a dependant can apply to the court for maintenance from the estate under the Maintenance of Surviving Spouses Act 27 of 1990. However, this is a complex legal process with no guaranteed outcome.
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.
