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The unforeseen legacy, the implications of dying without a will

Author
Stian De Witt
Date
7 June 2023
4 min read

In tapestry of life, we often find ourselves consumed by the demands of the present, neglecting to plan for the uncertainties of tomorrow. Dying without a will, also known as dying interstate, has serious implications on you, your family, your estate, and the distribution of your assets. By exploring the consequences of what happens in this unfortunate circumstance, we can shed light on the importance of proactive estate planning.

Law will determine asset distribution

When you die without a will, the law will dictate how your assets are distributed. These laws are called interstate succession laws. Succession laws prioritise spouses, children, and other close relatives. The Master of the High Court’s office supervises the administration of the deceased estate. The law of succession will prioritise spouses, children, and other close relatives as beneficiaries. However, the specific distribution may not align with your express wishes.

Lack of control over asset distribution

Without a will, you forfeit the opportunity to specify how you want your assets distributed. This can lead to unintended consequences and disputes among family members who may have different expectation about who should receive what if anything from your estate. The lack of control over asset distribution can lead to a few unintended consequences. Including that unmarried partners or close friends may receive nothing, despite having a significant role in the deceased person’s life. Disagreements may arise regarding who is entitled to which assets, creating tension and conflict between families and close friends. This can have far reaching consequences, becoming costly and emotionally draining, as individuals may seek fair distribution and can contest the validity of the interstate succession laws. Resulting in disputes, strained relationships, and potential hardships for those left behind.

Potential delays and legal complexities

Dying without a will can result in more complicated and time-consuming transfer process. The court may need to appoint an administrator to handle the estate, and distribute assets according to succession law, which can take longer than if you had a will in place. The lack of a clear will directive can also lead to confusion and disputes among family members, further extending the transfer process and estate wind-up timeline.

Limited consideration for non-traditional relationships

Succession law often prioritises spouses and blood relatives over unmarried partners, stepchildren, or close friends. If you want to provide for individuals outside of the traditional family structure, it's crucial to have a will that specifically addresses your intentions.

In terms of the Interstate Succession Act (Act 81 of 1987), the estate will be distributed to the beneficiaries in order of preference, which are outlined as;

  • The spouse of the deceased
  • The descendants of the deceased
  • The parents of the deceased (only if the deceased died without surviving spouse or descendants)
  • The siblings of the deceased (Only if one or both parents are predeceased

In the case of customary marriages, the Interstate Succession Act (Act 18 of 1987) further accommodates cases where the husband was in a polygamous customary union.

Increased costs

Probate and transfer costs, such as court fees and legal expenses can be higher when there is no will in place. The complexities of determining the distribution of assets and resolving any disputes can lead to additional expenses that could have been minimised a clear estate plan and will in place.

Additionally, without a will, the court’s involvement becomes more extensive. The court may require additional documentation, hearings, and evaluations, which results in further administrative costs and potential frustrations for family members.

Guardianship decisions

If you have minor children, dying without a will raises concerns about their guardianship. Without clear instructions, the court has the responsibility to decide who will care for the child or children. While the court aims to act in the best interest of the children, the decision-making process may not align with your preferences or close relationships with extended family or close friends. By having a will, you can nominate a guardian of your choice an ensure your wishes are known, providing stability for your children during such a challenging time.

Dying without a will can have a profound impact on asset distribution, familial relationships, and the overall well-being of loved ones. To avoid the problems of not having a living will in place, it is recommended that you create a comprehensive estate plan that includes a will. Working with an NMG Financial Advisor who will help you draw up your will to ensure your wishes are properly documented and legally enforceable.


T&Cs apply. NMG Consultants and Actuaries (Pty) LTD is an authorised financial services provider FSP 12968

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