The Intestate Succession Act

What happens if you pass away without leaving a valid will?  Your estate will be administrated in terms of the Intestate Succession Act 81 of 1987. Herewith a summary of the provisions of the Intestate Succession Act:


  • Deceased is survived by a spouse or spouses, but not by a descendant/s.
    The spouse or spouses will inherit the intestate estate. In the case where the deceased was a husband in a polygamous marriage the surviving spouses will inherit in equal shares.

  • Deceased is survived by a descendant/s, but not by a spouse.
    The descendant or descendants will inherit the intestate estate.

  • Deceased is survived by a spouse or spouses, as well as a descendant/s.
    Each spouse will inherit R250 000 or a child’s share, whichever is the greater and the children the balance of the estate. A child share is determined by dividing the intestate estate through the number of surviving children of the deceased and deceased children who have left issue, plus the number of spouses who have survived such deceased.

  • Deceased leaves no spouse and no descendants but leaves one parent, while the deceased parent left descendants (brothers/sisters of the deceased).
    The surviving parent will inherit one half of the intestate estate and the descendants of the deceased parent the other half.

  • Deceased leaves no spouse or descendants but leaves one surviving parent, while the deceased parent did not leave any other descendants.
    The surviving parent will inherit the whole estate.

  • Deceased does not leave a spouse or descendants or parents, but both his parents left descendants.
    The intestate estate will be split into equal parts. One half of the estate is then divided among the descendants related to the deceased through the predeceased mother and the other half among the descendants related to the deceased through the predeceased father.

  • Deceased does not leave a spouse, descendant or parents, but only one of the predeceased parents left descendants
    The descendants of the predeceased parent who left descendants, will inherit the entire intestate estate.

  • The deceased does not leave a spouse or descendants or parents or descendants of his parents. The nearest blood relation inherits the entire intestate estate.

  • The deceased is not survived by any relative. 
    Only in this instance will the proceeds of the estate devolve on the state.

What to budget for when buying or selling a property

When you buy or sell a property you want to be prepared.


Herewith a list of expenses you need to budget for:



  • Bond cancellation costs: The bondholder appoints attorneys to cancel your bond. You will be responsible for their costs. Currently most attorneys charge between R3000 and R5000 to cancel a bond.
  • Clearance figures at the Local Municipality: You will need to pay any outstanding monies due to the municipality as well as about 4 months in advance for all your rates, services and expenses. After registration, the municipality will refund any credit due to you. This varies from council to council but can take between 3 – 12 months.
  • Clearance figures at the Body Corporate or Home Owners Association: Your account must be paid up to date as well as 2-3 months in advance. Any credit will be refunded after registration.
  • Electrical, plumber, beetle, gas, borer, fencing compliance certificates, where applicable.
  • Estate agent’s commission



  • Transfer Attorneys Costs: The purchaser is responsible for all the costs in a transfer. The transfer costs are calculated on a sliding scale as prescribed by the law society. You are welcome to contact us for a quote.
  • Bond Attorneys Costs: The financial institution where you have applied for a bond will appoint attorneys to register the bond for whose costs you will be responsible.
  • Transfer duty: A tax levied by SARS which is payable before registration takes place. Must be paid within six months of signature of the offer to purchase or SARS will charge interest. There are exemptions in certain transfers ( deceased estates, divorces etc. Contact us for more information) These are the Transfer Duty rates applied to properties acquired on or after 1 March 2017, and apply to all persons (including Companies, Close Corporations and Trusts):
  ​VALUE OF PROPERTY               



0 – 900 000 0%
900 001 – 1 250 000 3% of the value above R900 000
1 250 001 – 1 750 000 ​R10 500 + 6% of the value above R 1 250 000
1 750 001 – 2 250 000 R40 500 + 8% of the value above R 1 750 000
2 250 001 – 10 000 000 R80 500 +11% of the value above R2 250 000
10 000 001 and above R933 000 + 13% of the value above R10 000 000


  • Local Council and/or Body Corporate and/or HOA certificate costs: The administration fees levied by these institutions to issue the clearance certificate are for the Purchaser’s account.
  • Local Council / Body Corporate Electricity Deposit

Things You Should Know When Buying or Selling a Property: The Conveyancing Process from A to Z

Conveyancing  is the process of transferring ownership of immovable property from one person to another. It is done by registering a new deed of transfer at the relevant Deeds Office.

There are usually three attorneys involved in the process:


TRANSFERRING ATTORNEYS: The attorney appointed to transfer the property. In practice the Seller has the right to choose and appoint the transfer attorney but the parties can also agree on an attorney in the Offer to Purchase.


BOND CANCELLATION ATTORNEY: If the Seller currently has a bond registered over his/her property, the financial institution where the is registered will appoint an attorney to cancel the bond.


BOND REGISTRATION ATTORNEY: If the Purchaser is financing the property, the bank/financial institution will appoint an attorney to register the new bond over the property.


Herewith a short schematic of the entire  transfer procedure:



Please note that the above process is for an ordinary transfer. Should the transfer be in terms of a deceased estate, an endorsement transfer, divorce transfer, etc., the process will include more steps and will take longer to register. The efficiency of the various Government departments will determine the length of time it takes to register the transaction but ordinarily does not exceed four months.

Administration of Deceased Estates

Losing a loved one is difficult.  The last thing you want to worry about is the estate administration process which can be a stressful procedure even in the best of times. We can help. If your loved one left a will appointing you or a family member as executor or maybe he/she passed on without a will, we can assist.


What happens when someone pass away?


A deceased estate comes into existence when a person dies.  The estate must then be administered and distributed in terms of the deceased’s will, or failing a valid will, in terms of the Intestate Succession Act, 81 of 1987. The procedure which must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 66 of 1965.


Where must the Estate be Reported?


The estate must be reported to the Master of the High Court in whose area of jurisdiction the deceased was living at the time of his/her death. The Master has 14 offices in South Africa at Johannesburg, Pretoria, Cape Town, Pietermaritzburg, Grahamstown, Bisho, Umtata, Bloemfontein, Kimberley, Mmabatho/Mafikeng, Polokwane, Durban, Port Elizabeth and Thohoyandou. With the assistance of correspondent attorneys we can assist you with an estate at any Master’s office.


When and by whom must the Estate be Reported?


The estate of a deceased person must be reported to the Master within 14 days from the date of death. For this reason it is important to come and see us as soon as possible.  The estate is normally reported by the nominated Executor or his agent. We as specialists in deceased administration will assist you in completing all the necessary forms to report the estate.


Please bring the following documents with you on the first consultation:

  1. Identity document of person reporting the estate;
  2. Deceased’s identity document;
  3. Death Certificate;
  4. Marriage certificate and Antenuptial Agreement(if applicable);
  5. Original will (if the deceased had one) otherwise a list of the close relatives (that there can be established who inherits in terms of the Intestate Succession Act, 81 of 1987;
  6. Identity document of spouse and children of deceased;
  7. Income tax number of deceased (if he had an accountant, the accountant’s details)
  8. List of deceased’s assets and liabilities (if available).


How to Report an Estate to the Master of the High Court


The reporting documents will be slightly different depending on the value of the estate and the type of appointment required.


The Magistrate’s Offices service points will only have jurisdiction if the deceased did not leave a valid will and the gross value of the estate is less than R50 000. Letters of authority entitle the nominated representative to administer the estate without following the full procedure set out in the Administration of Estates Act.


However, if the value of the estate is less than R250 000 but more than R50,000.00 the estate must be reported to the Master of the High Court.  The Master will  issue Letters of Authority in terms of section 18(3) of the Administration of Estates Act and the full process prescribed by the Act will also not need to be followed. We will assist you to obtain the Letter of Authority for a once of fee.  Please contact our offices for more information.


If the value of the estate exceeds R250 000, Letters of Executorship must be issued and the full process prescribed by the Administration of Estate Act must be followed.


Administration of an Estate (Process)


  • The reporting documents  are delivered to the Master.
  • The Master appoints an Executor (If you are the executor in your personal capacity, the Master will require that you appoint a professional to assist you. We can then act as your agent)
  • The Executor advertises in a local newspaper and the Government Gazette, inviting all creditors to prove their claims.
  • The Executor opens an estate bank account.
  • The Executor winds up the estate: In this step the executor reports the estate to SARS, all financial and other institutions, close account get valuations of assets etc.)
  • A Liquidation and Distribution (L&D) account is drawn up and sent to the Master for their approval.
  • The Master of the High Court approves the L&D account.
  • The L&D Account has to lay open for inspection at the Master’s  Office and Magistrate’s office for 21 (twenty one) days.
  • The Executor has to advertise in a local newspaper and the Government Gazette that the L&D account will lay open for inspection at the Magistrate’s court.
  • If there are no objections to the L&D account, the Executor pays out all the creditors and the heirs. If there is an immovable property, it can now also be transferred to the heirs.
  • Final documents and affidavits are submitted to the Master to close the estate file.


Costs of estate administration


The following costs are typically payable from the funds in the estate during its execution:


  1. Master’s fees payable to the Master of the High Court. The formula to determine this is:
    o If the value of the estate exceeds R15 000, but is less than R17 000: R42
    o If the value of the estate exceeds R17 000, then a further R6 is charged for each next full R2 000 by which the gross value exceeds R17 000.
    o Subject to a maximum fee of R600.
  2. Executor’s remuneration, of which the maximum tariff is determined from time to time in the regulations to the Administration of Estates Act. The current maximum tariff (excluding VAT) is:
    o 3.5% on the gross value of the estate assets, including on the gross value of a community estate (excluding assets payable outside the estate direct to beneficiaries), and
    o 6% of all incomes (e.g. rentals, interest and dividends) which the executor collects on behalf of the estate from the date of the testator’s death to the date of final execution of the estate
  3. Valuation costs of assets which have to be valued for estate purposes
    The Master may insist that the assets of the estate must be valued by a sworn appraiser, and for that the sworn appraiser is entitled to a fee, which is calculated according to a sliding scale. The appraiser is also entitled to levy kilometre charges, which are also calculated on a scale determined from time to time. A sworn appraiser is a person appointed by the Master specifically for the valuation of assets in an estate. Amongst other things, the appraiser must have a good knowledge of property values in the area in which he is appointed. Appraisers are appointed to do valuations of assets in specific areas, and may not do valuations outside the relevant area.
  4. Advertising costs
    The Administration of Estates Act stipulates that, in the case of each estate an executor has been appointed to administer, the executor must place the following advertisements:
    o Calling upon creditors to prove their debts against the estate
    o Giving notice that the Liquidation and Distribution Account is open for inspection for a given time at a certain venue
    Both the above-mentioned advertisements must appear in one or more local newspapers published in the area where the deceased ordinarily lived, as well as in the Government Gazette. If the deceased lived in another district within 12 months prior to his/her death, the advertisement must also appear in one or more newspapers in that district. Currently the cost per advertisement is about R406.
  5. Costs for the provision of security to the Master in cases where the executor does not qualify for an exemption
    In terms of the Administration of Estates Act, only certain executors are exempt from providing security to the Master. If a nominated executor does not qualify for the exemption, the Master will insist that the executor provide the necessary security for the value of the estate, before the executor’s appointment is confirmed. The security must be in the form of a Bond of Security, issued by a short-term insurance company. The current annual rate for this amounts to 0,684% on the value of the security, with a minimum annual premium of R300.
  6. Estate bank account bank charges
    Professional executors, who administer large numbers of estates, negotiate a favourable rate with the bank.
  7. Transfer costs of fixed property
    Before an estate can be finalised, fixed property forming part of the estate must be transferred into the name of its rightful heir in terms of the Deeds Registries Act. The transfer costs involved are payable from the estate and are calculated according to the value of the fixed property, on a sliding scale. As conveyancers we can also assist with the transfer of the property ensuring the best rate. Kindly contact us for a quote.
  8. Cancellation costs of bonds registered over fixed property in the estate
    The executor must cancel all bonds registered over fixed property forming part of the estate, after the outstanding balances have been settled in full. The costs involved are payable by the estate and are calculated according to the amount of the bond, on a sliding scale.
  9. Funeral costs form part of the claims against the estate and are payable from the funds of the estate.

If there is not enough cash available in the estate to cover the estate expenses, some of the estate assets will usually need to be sold. Sometimes the heirs might want to keep these assets and they will need to pay money into the estate. Depending on the simplicity of the estate and the amount of work that needs to be done,  a smaller executor’s fee can be negotiated. You are also welcome to contact our offices for more information in this regard.

How to register an Antenuptial Agreement

Congratulations! Your significant other asked the big question and you said yes! There are so many things to plan: The venue, the opening dance, who is going to be your bridesmaids and of course The Dress.


All too-often the legalities get left behind, forgotten… Now we know that Antenuptial Contracts (ANC’s ) are not the most exciting subject when planning your wedding but it is by far the most important. In all honesty, it is probably the most important document you and your future spouse will ever sign.


“But we are happy and nothing will ever go wrong, we love each other” – this is something I hear prospective brides and grooms often say. They do not realise that the consequences of a marriage in community of property can be immediate and far-reaching, even for couples who never gets divorced. These consequences were discussed in detail here.


So you and your spouse-to-be have made the responsible decision to get an ANC, what now? Did you know that an ANC can be tailor-made to suit you? You can include any provisions you like, as long as the provisions are not against the law, good morals or the nature of marriage.  The most important provision in the agreement is whether the marriage will be out of community of property WITH accrual or WITHOUT accrual. The difference between the two is explained in detail  here.


The only thing that is left to do is to contact us and make an appointment.  Remember that an ANC must be registered BEFORE the wedding so it is crucial to make an appointment at least a month before the wedding.


Our all inclusive fee for drafting and registering of the contract is R1800.00.


We know that wedding season is coming up and we are currently running a special promotion. If you contact us before the end of October 2017 you will only pay R1500.00 (all inclusive).


Contact us today.

Getting married?  Do you need an Ante Nuptial Contract?


So after looking at the consequences of a marriage in community of property, you and your prospective spouse made the decision to get married out of community of property.


A marriage out of community of property is achieved by drawing up an ante nuptial contract (ANC). The ANC will be the most important contract that a married couple will sign in their lifetime. The agreement must be entered into before marriage and allows the spouses to tailor-make their very own matrimonial property regime.


Out of community of property means that both spouses still have their own separate estates and that each spouse has the freedom to do with their estate as they please without the permission of the other spouse.  Each spouse can buy or sell assets and will be responsible for their own debts.


When you negotiate the terms of your agreement with your spouse the agreement can either be with accrual or without accrual. Let us look at the difference and legal consequences of the two:


Out of community of property with accrual:


So what exactly is accrual? The accrual system will only be relevant when the relationship comes to an end – either by divorce or death.  The accrual system has no consequences to the outside world:  it is purely an internal arrangement between the spouses. On dissolution of the marriage, either by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally by the spouses.


The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations. On dissolution of the marriage the value of the difference in the accrual of the two estates, taking inflation into account, is then divided equally. No creditor can make any demand on the accrual of the other spouse.


Accrual is something the legislature imposed in 1984 to protect the ‘homemaker’.  Most mothers contributed to the household by staying at home to look after the children and to manage the household. That meant that they were not able to grow their own estates financially. If they were married out of community of property and the marriage ended, they were then left with nothing.  Of course this was not fair as the husband would not have been able to grow his estate in the way he did if his spouse did not contribute by saving expenses and looking after their children.


Now a lot of people might think that this concept is outdated but in reality accrual is still very relevant today. In a lot of households one spouse might work in a lower paying job or position so that they are more available to look after the household or children. They might work with or for their spouses or they might stay at home to look after the children.


The accrual system thus offers a fair, modern, equitable system that is conducive to a harmonious marriage relationship. In short it means that each spouse has their own separate estates but at the end of the marriage, both spouses share in what was accumulated during the marriage.


Out of community of property without accrual:


This system is probably the easiest system to understand. It literally means: “what’s mine is mine and what’s yours is yours.” You and your spouse do not share any assets or liabilities (expect if you buy something together in both your names) either before, during or after the marriage. This property system is the one I would usually recommend where both spouses are self-sufficient and neither stays at home to contribute to the household in a non-financial manner. Examples are couples who have already made their way life, who have older children from previous marriages or do not want to have any children together.  To exclude accrual, your contract must implicitly state that you want to exclude accrual or it will apply automatically.




In the end neither regime, with or without accrual, is superior to the other. Every couple must look at their own specific needs and base their decision thereon.



Marriage in community of property: the legal consequences


In South Africa you are automatically married in community of property when you get married without registering an ante nuptial contract. Now you might think that it is not so bad to be married in community of property. You love each other and you want to share everything you have with the other person.  But do you really understand what it means to be married in community of property?

Let me explain the legal implications:

1. You have one joint estate of which each spouse have a 50% undivided share:

This means that all your assets, also those you accumulated before the marriage, forms part of your joint estate (There are some exceptions, for example when a will stipulates that an inheritance does not form part of the estate). Also both your liabilities, incurred prior to and during the marriage, are considered liabilities of the joint estate. So, if one spouse comes into the marriage with a lot of debt, his/her debt will then form part of the joint estate. The other spouse will then be jointly responsible for that debt.  This include any debt, it can be maintenance payable to an ex-spouse from a previous marriage and even maintenance payable to extramarital children. Each spouse also has the capacity to bind the joint estate through their actions. For example, if a spouse has his/her own business and applies for an overdraft, and the business fails to pay the overdraft, a claim can be made against the joint estate.

2. For certain actions you will need permission from your spouse:

As you do not have your own estate, you will need to get your spouse’s permission before entering into most transactions. In the case of purchasing or selling immovable property or entering into any credit agreement, you will have to obtain the written consent of your spouse.

3. When one spouse becomes insolvent, both spouses become insolvent:

This one speaks for itself. During insolvency the joint estate, including all assets specifically excluded from such an estate, are sequestrated as a community in property means that both persons are co-responsible for all liabilities.

4. When one spouse dies, the entire joint estate must be administrated by the executor:

The executor will by law administer the entire estate and not only one half of the deceased’s share. Therefore executor and Master’s fees are calculated on the gross value of the joint estate. Furthermore, all liabilities in the joint estate have to be discharged, unless the surviving spouse, if he or she is the only heir, is able to take them over.


In essence there are just too many disadvantages and risks to still get married in community of property. Especially in today’s economic climate with more and more people owning or starting their own businesses.

Please click here to read how you can get an Antenuptial Agreement for a marriage out of community of property.