Most people realise the importance of obtaining sound financial advice, providing for their dependants (in the present and in the future) and providing for their own retirement. When it comes time to leave this life, sound estate planning can ensure the ongoing management of your property and assets for the benefit of your dependants and beneficiaries. Without sound estate planning, it is always the loved ones left behind who are burdened with the financial realities of death.

The legal principles of succession regulate the distribution of a deceased person’s property and assets. Succession takes place in two ways, namely, either:

• In accordance with a valid will in which the testator/testatrix regulates the succession. This is known as testamentary succession; or

• By operation of law of intestate succession, which regulates succession in cases where the deceased dies without a will.

Legal consequences of intestate succession

The law of intestate succession identifies the heirs to a deceased estate when the deceased has failed to regulate the dissolution of his/her property by way of a valid will.

The law of intestate succession is regulated by the Intestate Succession Act, Number 81 of 1987, as amended (the “Act”). In terms of the Act, if the deceased:

• is survived either by a spouse or a descendant, such spouse or descendant shall inherit the entire estate;
• is survived by both a spouse and a descendant, the spouse shall inherit a child’s share of the estate or R125 000 (whichever is greater) and the descendant/s shall inherit the residue (if any) of the intestate estate;
• is not survived by a spouse or descendant, but by both his/her parents, his/her parents shall inherit the estate in equal portions. In the event that only one parent survives the deceased, the surviving parent inherits half the estate and the descendants of the deceased parent inherit the other half;
• is not survived by a spouse, descendant, parent or descendant of a parent, his/her nearest blood relations shall inherit the estate in equal portions; and
• dies without any person capable of inheriting from him/her, the executor shall convert the estate into money and after payment of all the deceased’s debts, place the proceeds of the estate in the Guardian Fund.

Legal consequences of testate succession

A will is a voluntary statement of intention by a person, in terms of which the person regulates issues such as the determination of an executor, funeral proceedings, guardianship and the distribution of his/her property and assets after his/her death.

The formalities for the execution of a valid will

Statutory and legal formalities are required to be complied with when executing a will or when amending a previous will in order to be valid. A summary of these requirements follow:

• The will must be in writing.
• The will must be signed by the testator/testatrix himself/herself with his signature, or by making a mark or some other person duly authorised may sign the will on his or her behalf.

• The testator/testatrix must sign the will in the presence of two or more competent witnesses present at the same time. The witnesses must sign and attest the will in the presence of one another and the testator/testatrix. Furthermore, where the will consists of more than one page, the testator/testatrix must sign or acknowledge his signature on every page in the presence of the same two witnesses who are present at the same time.

• In the event that the testator/testatrix directs some other person to sign his signature on his behalf, such person must sign the will or acknowledge his signature in the presence of the testator/testatrix and two or more competent witnesses. The signature must be appended at the end of the will. These same two witnesses must then, in the presence of the testator/testatrix, the person signing the will and one another, sign and attest the will on the last page of the will. Where the will consists of more than one page, the person signing on behalf of the testator/testatrix must also sign all the preceding pages in the presence of the testator/testatrix and the same witnesses who are all present at the same time. In addition, the commissioner of oaths must append a certificate to the will, whereby he certifies that he has satisfied himself as to the identity of the testator/testatrix, and that the will so signed is the will of the testator/testatrix.

• Witnesses disqualified from receiving benefits under a will, includes the nomination as executor or trustee.

The benefits of executing a will

A valid will allows the testator/testatrix to regulate issues of funeral or cremation proceedings, guardianship, executorship and the dissolution of his/her property and assets after his/her death to his/her chosen beneficiaries. In the absence of a valid will the estate devolves by operation of law.

Further, a valid will with the inclusion of a trust ensures that beneficiaries under the age of
majority inheritance can vest in a regulated trust with appointed trustees.

A valid will seeks to ensure a simplified and more efficient distribution of a deceased’s
estate and can often resolve disputes and/or litigation between potential beneficiaries.

We hope the above is of interest to you.

Contact:
BKM Attorneys
Tel: +27 11 788-0083
Email: enquiries@bkm.co.za.