What happens to my children if I die without a will in South Africa?

Written by Shellah Murombo (15 January 2022)

Records from the Master’s office show that the percentage of people in South Africa who dies without a will is approximately 70%. It is of vital importance to have a will in place if a person has minor children.

What is a will?

A Will is a legal document that stipulates a person’s wishes on how they would like their property to be divided between their family members after their death.

 Who will ensure that my assets are adequately divided if I die without a will?

If a person dies without a Will, the beneficiaries will nominate an Executor/Executrix. This person will be responsible for liquidating the assets, managing the bank accounts and dividing the assets between the heirs.

Where will my minor children stay if I pass away without a will?

If one parent dies, the remaining spouse will usually be the children’s legal guardian. However, if both parents die simultaneously, the children might be placed in the care of someone they are not familiar with or someone they do not trust.

It is vital that a couple clearly states who they nominate as guardians over their minor children in the case of their simultaneous death. The clauses will indicate where their minor children should go in the event something should happen to both parents, as well as who should be contacted if the first nominated guardians cannot be reached.

What will happen with my minor children’s inheritance when I pass away without a will?

When the child is still a minor, the inheritance will be kept and managed by the Guardian’s Fund. The Government created the Guardian Fund to receive and manage money on behalf of persons legally incapable or who cannot manage their affairs. This includes minors and mentally disabled people.

However, if one has a valid Will, the deceased would have been able to set up a trust and nominate their own trusted Trustees to handle their children’s inheritance. The Trust Deed will clearly stipulate how the money should be spent and what the powers of Trustees are. For example, at what age the children should receive the capital and how the Trustees should pay funds over to the guardians to maintain the minor children.

Can I make sure that my child only receives their inheritance when they are older?

Yes, one can always decide at what age their heirs should receive their inheritance. This will be set out in the Trust Deed of the Testamentary Trust.

The Trust Deed will clearly state how the children’s inheritance should be shared amongst the surviving heirs and stipulate what age they should inherit from the Trust.

Burger Huyser Attorneys specialises in deceased estates, drafting of wills and estate planning. Contact our wills and estate lawyers in Johannesburg for urgent, expert assistance with your matter.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE