Dying Without a Will in South Africa

A few years ago, I was approached by a devastated family in the wake of an unthinkable tragedy. Both parents had died simultaneously in a freak accident leaving behind a minor child as their sole heir, and no valid Will by either parent. As a result, the estate fell under intestate succession, creating significant legal and administrative complications.

In legal terms, they had died intestate. Under South African law, when a person passes away without a valid will, the estate is administered in accordance with the Intestate Succession Act 81 of 1987. This statute imposes a rigid formula for distributing assets, regardless of the deceased's family structure, financial realities, or personal intentions. In this case, the law took over every decision, leaving the family with no say in matters.

Guardianship and the role of the court

Without a Will nominating a guardian, the matter was referred to the Children's Court, which ultimately appointed a guardian in terms of the Children's Act 38 of 2005. While the court followed the prescribed legal framework, this route can be lengthy and procedurally intensive, often occurring during a highly sensitive time for the child and the child's extended family.

The Guardians Fund: limitations and delays

In addition to the guardianship matter, the child's inheritance was transferred to the Guardian's Fund, a government-administered fund overseen by the Master of the High Court. This fund exists to safeguard the financial interests of minors and other legally incapable persons. However, access to funds is strictly controlled.

Guardians must apply formally for disbursements, which are only approved for essential needs such as education, maintenance, and healthcare. The application process is administrative in nature and often results in delays. Supporting documentation must be provided and is assessed case by case.

Furthermore, the current state of many Master's Offices in South Africa contributes to additional inefficiencies. Chronic backlogs, lost files, limited staffing, and outdated infrastructure frequently result in prolonged estate and trust administration timelines. These delays affect families' ability to access critical funds and finalise even straightforward estates.

Benefits of a valid will

A properly drafted and executed Will would have allowed the parents to:

Nominate a legal guardian for their minor child
Establish a testamentary trust for the administration of the child's inheritance
Appoint trustees to manage the trust according to their instructions
Grant authorised access to funds for the child's immediate and ongoing needs
Ensure that the estate is distributed in line with their specific wishes

A Will also provides clarity to surviving family members, minimises the risk of disputes, and facilitates more efficient administration.

Wills are not just for the wealthy. They are for anyone who cares about their family

There is a common misconception that Wills are only necessary for the wealthy or those with complex estates. This is simply not true. Anyone with dependents, minors, assets, or preferences about how they wish their affairs to be handled should have a valid Will.

A legally sound Will allows you to:

Direct exactly how your estate should be divided
Protect your children and appoint their guardian
Minimise family disputes and delays
Appoint trusted executors and trustees
Establish inter vivos or testamentary trusts
Reduce taxes and estate administration costs

In South Africa, Wills are governed by the Wills Act 7 of 1953, which sets out the formal requirements for validity. These include proper signing in the presence of two competent witnesses and the mental capacity of the testator at the time of execution. When drafted and executed correctly, a Will becomes an enforceable legal instrument that safeguards your intentions and the well-being of your loved ones.

The importance of planning ahead

As an attorney who has administered numerous estates, I have seen firsthand the difference a valid Will makes. The cost of not planning is often borne by those left behind - your family, your children, and your legacy.

A Will is not just a document. It is a final act of care, clarity, and control. It ensures that your assets go to the right people, that your children are protected, and that your estate is managed efficiently, legally and respectfully.

Let us help you prepare

At our firm, we assist individuals and families with:

Drafting tailored wills that comply with South African law
Setting up trusts to protect minor beneficiaries
Advising on guardianship and succession planning
Acting as professional executors and trustees
Administering deceased estates
Navigating the Master's Office and all aspects of estate administration

Whether you are just starting a family, acquiring assets, or planning for the future, the time to act is now. It is never too early to plan, but it can become too late.

Protect your family. Secure your legacy. Plan with confidence.