What 'intestate' actually means
An estate is intestate if there is no valid will, or if a will is invalid, or if it does not dispose of the entire estate. In any of those cases, the Intestate Succession Act 81 of 1987 determines who inherits.
Intestate succession overrides personal wishes. Verbal promises, WhatsApp messages and unsigned drafts have no legal effect.
The order of succession
If the deceased is survived by a spouse and no descendants, the spouse inherits the entire estate.
If the deceased is survived by a spouse and descendants, the spouse inherits the greater of a child's share or R250,000, and the descendants share the balance per stirpes.
If there is no spouse but there are descendants, the descendants inherit per stirpes - meaning a deceased child's share goes to that child's own descendants.
If there is no spouse and no descendants, the estate goes to the deceased's parents, then siblings, then more distant relatives, in that order.
Customary marriages and life partners
Spouses in a customary marriage under the Recognition of Customary Marriages Act 120 of 1998 inherit on the same basis as a civil-law spouse.
Permanent same-sex life partners have been recognised by the Constitutional Court for the purposes of intestate succession (Gory v Kolver, 2007).
Permanent opposite-sex life partners do not yet have an automatic right to inherit intestate. The Bwanya judgment of 2021 changed the position for maintenance claims, but the Intestate Succession Act has not been formally amended at the time of writing - this remains an area to watch.
Why intestate succession rarely matches your intentions
There is no provision for stepchildren to inherit unless they are formally adopted.
There is no recognition of long-term unmarried partners in opposite-sex relationships.
Minor children's inheritances are paid into the Guardian's Fund administered by the Master of the High Court, where they earn interest at a regulated rate but are not invested for growth.
A simple, properly executed will avoids all of this. The cost is modest. The cost of dying intestate is paid by your family.
Common questions
What is a child's share in intestate succession?
A child's share is the value of the estate divided by the number of surviving children plus the surviving spouse. The spouse always inherits at least R250,000 or a child's share, whichever is greater.
Do unmarried partners inherit if there is no will?
Same-sex permanent life partners are recognised under intestate succession following the Gory v Kolver judgment. Opposite-sex unmarried partners do not yet have an automatic intestate right at the time of writing.
Part of these pathways