What REALLY happens if you die without a will in South Africa?

Research shows that roughly 70% of South African’s die without a will in place1. That means if you are reading this there is a very good chance you don’t have a will.

But what really happens on the ground when winding up your late estate if you don’t have a will?

Let’s take a typical South African family situation.

Our family is made up of parents with two children and a Grandmother who the parents look after.

Tragically, the parents die in a car accident.

After the funeral, it becomes apparent that there are no wills in place. As a result, the Law of Intestate Succession which is effectively the “States will” determines how the estate is split up.

The Grandmother, & family friends firstly help notify all the banks, car finance, bonds, and all account holders of the deaths and send Death Certificates to these entities.

The Grandmother approaches an executor (attorney, company or bank) for assistance in the administration of the deceased estate. The Master of the High Court then has to appoint the nominated executor but due to the sheer number of intestate estates, there are delays in appointing the executor.

These delays can run into months and sometimes years which is a problem because until the Estates are finalised assets and bank accounts are frozen. In our family, the children and Grandmother would not have access to funds for day to day expenses from the parent's bank accounts.

It’s up to this bereaved family to go through all the parent's paperwork to find whatever policies and accounts existed. In our example, the parents did not have their affairs in order which has resulted in further delays in trying to get the paperwork together for the executor and a large policy left to the children was lost as it was missed.

Eventually, after 3 years, the appointed executor is able to distribute the estate.

In this case, the Children would be the sole beneficiary of the Estate which at face value seems fine but there are some complications.

Firstly, there is no guarantee that the Grandmother will be provided for and she will be in a dangerous predicament with no clear idea who will take care of her.

Secondly, all funds would have to be paid into the Guardians fund run and administered by the State. As there is no will nominating legal guardians the court will appoint a guardian for the children, unfortunately, this person may not have been the first choice of the parents. The court-appointed guardian would then have to work through the Guardian fund to access finances to provide for the children, this isn’t easy due to the strict requirements to prevent fraud in accessing funds and the general bureaucracy that surrounds state institutions.

It is clear that not having a will can be a real problem.

If you have children, there is no reason why you shouldn't have a will.

With the advent of technology and the introduction of cutting edge FidTech online solutions, you can create and update a will in the palm of your hand.

SmartWill works alongside top Fiduciary lawyers to ensure that you can create a will, quickly, and professionally taking all legal requirements into account and physically checking your will to ensure it is valid at an affordable price.

You can find out more at smartwill.co.za

Referenced 1. FISA (Master of the High Court) 4th Annual conference September 2014

Posted in If you die without a will on Jul 28, 2019

 

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