When you die without leaving a will, your estate will devolve in terms of the Intestate Succession Act but what exactly does that mean?

The Intestate Succession Act (Act 81 of 1987) is actually very easy and simple to understand and make provision for different circumstances.

In this article we will give a summary of the most common circumstances.

Please remember that for purposes of the Act, when referring to children, it includes the biological and adopted children of the deceased. It also includes children born out of wedlock and estranged children, even if the deceased did not know about the child. Frequently we get clients who say that a child was not a part of the deceased’s life or chose not to have a relationship with the deceased. This does not make any difference. If the deceased wanted to exclude any child from inheriting, he/she had to exclude them formally in a will.

1. Deceased were married but had no children:

This one is quite straightforward. The spouse of the deceased will inherit the entire estate.

If the deceased had more than one wife in terms of the customary law, the wives will share the estate equally.

2. Deceased were married AND had children:

In this circumstances, the estate will be divided between the spouse and the children. How the estate gets divided will depend on the value of the estate.

A spouse will get an amount of R250,000.00 OR a child’s share, whichever amount is greater. Each of the children will  equally share in the balance of the estate.

To clarify, I will give some examples herein:

1.  The value of the estate is R400,000.00 and the deceased had 3 children. If we divide R400,000.00           by 4 (3 children plus 1 spouse), the value f a child’s share will be R100,000.00. In this case a child’s           share is less than R250,000.00.  The spouse must thus get R250,000.00 and the balance of                         R150,000.00 will be divided equally among the children. The children will thus each get                               R50,000.00 (R150,000.00 divided by 3).

2.  Using the same example but with an estate value of R2,000,000.00 which we will divide by 4 again.          In this example a child’s share amounts to R500,000.00. This is more than R250,000.00 and the              spouse and each of the children will thus inherit R500,000.00

If the deceased was married in terms of customary law and had more than 1 wife, then the example in point 1 will be valid for each wife before the children will inherit.

3. Deceased were single but had children

In this case the children of the deceased will inherit the entire estate in equal parts.

4. Deceased were single and had no children

Where a deceased did not have a spouse or any children, the deceased’s parents will inherit his estate in equal shares. Where either one or both of the deceased’s parents are predeceased, that parent’s share will then go to that parent’s other descendants.

This can be quite confusing so I have made the diagram hereunder for further explanation.

In the diagram, A has passed away without leaving a spouse or children. A’s estate must thus devolve equally to his parents. 50% to Parent 1 and 50% to Parent 2. Parent 2 has predeceased A and thus his share must go to Parent 2’s descendants. Parent 2 had 3 children excluding A being B, C and D. B, C and D must inherit Parent 2’s 50% percent equally. As C is also predeceased, C’s share will devolve to her children, namely E and F, equally.


If you have any questions, please contact us.