Contact Anél Gagiano for any Will or Deceased Estate related queries.

Tel: (041) 582 5150
E-Mail: anel@anthonyinc.co.za

Wills & Deceased Estates

Last Will & Testament

last will and testamentAny person 16 years or older is competent to make a Will, provided that he/she has the mental capacity to understand the nature and effect of his/ her act at the time of making the Will.

The Wills Act 7 of 1953 prescribes certain formalities/ requirements that have to be complied with for your Will to be valid, thus it is always advisable to seek legal assistance when drafting your Will.

Failure to draft a valid Will, will result in the assets of your deceased estate being distributed under the Intestate Succession Act. This could result in your estranged spouse or least favourite family member receiving a portion of your estate which you may have preferred to donate to an animal shelter.

A testator has the right to freedom of testation which implies that no one has a fundamental right to inherit.

Deceased Estates

A Deceased Estate must be reported to the Master of the High Court within 14 days of date of death by any person having control or possession of any document that is or intends to be the Will of the deceased. The estate is reported by lodging documents with the Master.

Where the deceased was living in the Republic of South Africa, the estate must be reported to the Master in whose area of jurisdiction the deceased was living 12 months prior to his/her death. The executor nominated by the deceased in his/her Will to administer his/her Deceased Estate can be a professional person, family member or a friend. It is advisable to appoint an attorney who has the skills and expertise to assist the family with the proper administration of your estate as this is a highly specialised field.

One of the executor’s many tasks is to determine whether the deceased estate is solvent or insolvent. Solvent means that the estate has sufficient funds to pay all creditors, with the residue distributed between heirs. Insolvent means there are not sufficient funds to cover all debts owed by the deceased estate.

If a Deceased Estate exceeds the value of R250 000, Letters of Executorship must be issued by the Master and the full process prescribed by the Administration of Estates Act 66 of 1965 must be followed. However, if the value of the estate is less than R250 000, the Master may dispense with Letters of Executorship and issue Letters of Authority which entitles the nominated representative to administer the estate without following the full procedure set out in the Act.

How are assets distributed if the deceased was married out of community of property & passes away without a valid will?

Ante-nuptial contracts remain in full force & effect after the death of one spouse. Accordingly, if the marriage is out of community of property with the application of the accrual system, and the surviving spouse's estate accrued less than the deceased spouse's estate, the surviving spouse can lodge a claim with the executor against the deceased spouse's estate for his / her share.

Equally, if the deceased spouse's estate accrued less than the surviving spouse's estate, the executor of the deceased estate will lodge a claim against the surviving spouse on behalf of the deceased’s estate.

If a deceased (married out of community of property –without accrual) passes away without a valid Will and is survived by a spouse and children, the surviving spouse will inherit a child’s portion or R250,000.00, whichever one is greater, and the residue of the estate will be distributed between the children in equal shares.

The R 250 000.00 is a fixed amount prescribed by the Minister from time to time. A child’s portion is calculated by adding the number of children plus the spouse and dividing the value of the deceased estate by that number.

E.g. The value of the estate is R 900 000.00. There is one surviving spouse and 3 children. A child’s portion would thus be R 900 000.00/4 = R 225 000.00. The child’s portion is less than R250 000.00, thus the surviving spouse will inherit R250 000.00. The residue of R 650 000.00 will be divided between the children in equal shares. Accordingly, the surviving spouse will inherit R250 000.00 and the children will each inherit R216 666.66 in terms of the Intestate Succession Act.

How are assets distributed if the deceased was married in community of property & passes away without a valid will?

If a deceased (married in community of property) passes away without a valid Will and is survived by a spouse and children, the surviving spouse will receive 50% of the joint estate as well as a child’s portion or R250,000.00, whichever one is greater, and the residue of the estate will be distributed between the children in equal shares.

It is important to note that the marriage regime influences the inheritance distribution in that the surviving spouse will be entitled to 50% of the joint estate as a point of departure.

E.g. The value of the estate is 2.1 million. There is one surviving spouse and 3 children. The deceased and the surviving spouse were married in community of property, thus the surviving spouse is automatically (by law) entitled to receive half of the joint estate (R1,000,000.00).

In addition to receiving the R1,000,000.00, the spouse is also entitled to receive a child’s portion or R250,000.00, whichever one is greater. A child’s portion would thus be R1,100,000.00/4 = R275,000.00. The child’s portion exceeds R250,000.00, thus the surviving spouse will inherit R275,000.00.

The residue of R825,000.00 will be divided between the children in equal shares. Accordingly, the surviving spouse will receive R1,275,000.00 and the children will each inherit R275,000.00 in terms of the Intestate Succession Act.

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