When There Is No Will — Who Gets What?

Every South African dies in one of two ways — either leaving a valid will (testate), or without one (intestate). When someone passes away intestate, their estate does not simply dissolve or revert to the state. Instead, a well-established set of rules kicks in automatically to decide where the assets go.

The governing legislation is the Intestate Succession Act 81 of 1987, which came into force on 18 March 1988. Its purpose is clear: to create a fair, predictable framework that distributes a deceased person's estate when they have not expressed their own wishes through a will — or when a will (or part of it) turns out to be invalid.

Before this legislation, South African common law only recognised blood relatives as natural heirs. The 1987 Act made a significant departure from that tradition: spouses and adopted children were formally elevated to the status of intestate heirs, giving surviving partners and legally adopted children the same standing as biological relatives when it comes to inheritance.

It is also worth noting that intestate succession does not only apply to an entire estate. If a person leaves a will that is partially invalid — for example, a specific bequest that fails — the remainder of the estate (the part not covered by the valid portions of the will) devolves under the Intestate Succession Act.

The Act does not treat all relatives equally. It works through a priority ladder — certain categories of people take precedence over others. The key principle is elegantly simple:

One critical point: if a higher-priority category exists, it excludes the lower categories entirely. So if the deceased is survived by a spouse and children, parents and siblings inherit nothing — even if the spouse and children were estranged from the deceased.

When a deceased person leaves children but no surviving spouse, those children inherit the entire estate — divided equally among them. But the picture becomes more interesting when some children have themselves already passed away.

The Act divides estates among descendants per stirpes — a Latin phrase that means "by the branch". This system of representation allows a deceased child's own children (the grandchildren of the original deceased) to step into the shoes of their parent and claim what their parent would have received.

A stirpes is essentially counted as a "branch" of the family — each living child of the deceased represents one branch, as does each deceased child who left surviving descendants. The estate is first divided at the level of those branches before being distributed within them.

The Act explicitly provides that being born outside of wedlock does not affect a person's capacity to inherit from a blood relative. In other words, a child born to unmarried parents has the same intestate inheritance rights as a child born within a marriage. Stepchildren, however, are a different matter — a stepchild has no blood or legal relationship with the deceased parent-by-marriage, and therefore inherits nothing under intestate succession unless a will specifically includes them.

One of the most practically important scenarios is where the deceased leaves behind both a surviving spouse and children. Here the law applies a specific formula designed to protect the spouse without disinheriting the children.

The surviving spouse inherits the greater of R250 000 or a "child's share" of the estate. A child's share is calculated by dividing the net monetary value of the entire estate by the total number of children (alive, or deceased but leaving living descendants) plus one (the "plus one" representing the spouse).

This R250 000 floor — raised from R125 000 in November 2014 — exists to ensure that a surviving spouse is never left destitute simply because the estate happened to be small and the couple had many children. The law recognises that the spouse often depends on the estate for their daily living.

What happens when someone dies without a spouse and without descendants? The estate does not disappear — it moves up the family tree to the deceased's parents, and if the parents have also passed away, to their descendants.

This system ensures that the estate flows naturally down each parental line. It avoids scenarios where a perfectly living parent ends up with nothing simply because the other parent predeceased both of them without children.

These rules reflect a deeper principle: the law tries to distribute an intestate estate in the way that most reasonable families would have wanted — keeping assets close to home, balanced between both sides of the family, and never unnecessarily cutting anyone out.

As the inheritance order descends beyond the immediate family, the rules become more intricate — but they follow a logical pattern that always aims to keep the estate within the family bloodlines.

South African law takes a clear position on adoption: when a court formally adopts a child, that child becomes, in the eyes of the law, the full legal child of the adoptive parent — with all the inheritance rights that come with that status.

This means an adopted child can inherit from both adoptive parents and their blood relatives, exactly as a biological child would. Conversely, the adoptive parents and their bloodline can inherit from the adopted child should the adopted child predecease them.

However, there is a flip side: an adopted child cannot inherit from natural (biological) parents or their blood relatives under the intestate rules, and those natural relatives cannot inherit from the adopted child. The legal relationship with the birth family is extinguished at adoption.

South Africa is a constitutionally diverse society, and the Intestate Succession Act has been significantly expanded to accommodate families governed by customary law traditions, as well as those in religious marriages that were not formally solemnised.

The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 came into operation on 20 September 2010. Its key effect: the estate of any person who is subject to customary law, died after 20 September 2010, and left no will, must now devolve in accordance with the Intestate Succession Act — rather than under traditional customary succession rules that historically excluded widows and daughters.