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We’ve all seen it in movies and novels: A young unsuspecting person wakes up one day to find out that they had been left an extraordinarily large estate from a distant relative that they hardly knew existed. We chalk it up to an absurdity. Something like that would never happen in real life, would it?

Although it may seem farfetched, intestate succession happens far more often than one might realise. Statistics from the Master of the High Court in September 2019 showed that 70% of working South Africans do not have a will (or by extension, estate plan). Apart from the emotional distress caused by the death of a beloved, the families of these South Africans are in for a tough time should they pass away.

Anyone older than 16 years, and who is not mentally incapable, may execute a valid will. If a person passes away without leaving a valid will, the estate of the deceased will be distributed in accordance with the Intestate Succession Act 81 of 1987.

In the case of intestate succession, the estate of the deceased will be distributed in accordance with a predetermined line of succession, which usually includes their spouse, children and/or parents. In many respects, intestate succession is a complex and unnecessary complication in the distribution of an estate after death and can lead to procedures that take time, money and energy, which places a burden on those who are mourning and settling the estate.

When someone passes away without leaving a valid will it further implies that the deceased did not appoint an executor who will see to the administration of the deceased estate. This will result in the heirs having to nominate an executor of the deceased estate, failing which an executor is appointed by the Master of the High Court. For this reason, family disputes are a commonplace in intestate succession as the fair distribution of the estate is brought into question.

More often than not, there is very little liquidity in a deceased estate to cover debts and taxes of the deceased. One should keep in mind that the largest part of any estate often consists of real property. Since most of the real property does not have an immediate accessible monetary value, any possible liquidity in these assets are locked up until the executor makes a decision on how the property is to be administered.

Having a will is one thing, but estate planning goes further than a mere will, in that it gives direction for the administration of the estate. Where a will only give an indication of how assets should be distributed, a complete estate plan can make provision  for liquidity of the estate thus allowing access to cash to those who need it and how investments and financial assets are to be managed. 

The purpose of an estate plan, then, is to guide the management of your assets in a way that a will cannot. Good estate planning provides for a holistic strategy to ensure that your loved ones are cared for after you die.
In the case of estate planning, the adage holds true: Failure to plan is planning to fail. Don’t leave your dependents in a vulnerable position while they mourn. Instead, give them the best chance to live the life you’ve always hoped for them.

References:

  • Wills Act 7 of 1953
  • Intestate Succession Act 81 of 1987
  • https://www.moneyweb.co.za/financial-advisor-views/no-will-in-place-it-will-have-consequences/

This article is a general information sheet and should not be used or relied upon as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE).