Dying without a will: how intestate succession works in South Africa

Many South Africans die without a valid will. Some never get round to it. Others assume their spouse or children will automatically inherit everything, or that a will drafted decades ago, before a divorce, a new partner or a business, still reflects their wishes.

When there is no valid will, the law decides who inherits. The rules are set out in the Intestate Succession Act 81 of 1987. They are fair in a general sense, but they cannot take account of your particular family, your business or the people who depend on you. The results can surprise families at an already difficult time.

The rules also changed in April 2024 to include permanent life partners, which means unmarried couples need to understand how the Act now treats them.

When does intestate succession apply?

Intestate succession applies when a person dies:

• without a will at all;
• with a will that is invalid, for example because it was not properly signed and witnessed under the Wills Act 7 of 1953; or
• with a will that deals with only part of the estate, in which case the remainder passes on intestacy.

Who inherits under the Act?

The Act sets out an order of heirs. In broad terms:

1. A spouse and no descendants: the surviving spouse inherits the whole estate.
2. Descendants and no spouse: the descendants (children, and grandchildren in the place of a child who has died) inherit the whole estate.
3. A spouse and descendants: the spouse inherits the greater of a child’s share or R250,000, and the descendants share the balance. If the estate is worth less than R250,000, the spouse inherits all of it.
4. No spouse or descendants, but parents: both surviving parents inherit in equal shares. If only one parent survives, that parent takes half and the other half goes to the descendants of the deceased parent, such as brothers and sisters. If there are none, the surviving parent inherits everything.
5. No spouse, descendants or parents: the estate is divided between the descendants of the two parents, such as brothers, sisters, nieces and nephews.
6. None of the above: the nearest blood relatives inherit in equal shares.

If there are no relatives at all, the estate is paid into the Guardian’s Fund, and may eventually pass to the State if unclaimed.

Children born outside marriage and adopted children inherit on the same basis as children born to married parents.

Who counts as a “spouse”?

The definition is wider than many people realise:

• Civil marriages and civil unions are covered.
• Customary marriages are covered. The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 applies the Intestate Succession Act to customary estates, with rules for more than one spouse.
• Muslim marriages, including polygynous marriages, have been brought within the Act by Constitutional Court and other court decisions.
• Permanent life partners. Following the Constitutional Court’s judgment in Bwanya v Master of the High Court, Cape Town (2021), the Judicial Matters Amendment Act 15 of 2023 amended the Act, from 3 April 2024, to include a partner in a permanent life partnership in which the partners undertook reciprocal duties of support. The Maintenance of Surviving Spouses Act 27 of 1990 was amended in the same way.

The life partnership change is significant, but it is not automatic. A surviving partner must prove that the relationship was permanent and that both partners had undertaken to support each other. That usually means evidence of living together, shared finances, mutual dependence and how the couple presented themselves to others. Families sometimes dispute these claims, which can lead to delay and litigation.

Practical problems with dying intestate

• You do not choose your executor. The Master of the High Court appoints one, often after nominations from the heirs, which can take time.
• Minor children may inherit directly. Their inheritance is generally paid into the Guardian’s Fund, unless other arrangements are made, rather than into a trust with trustees you chose.
• Blended families can be left out. Stepchildren you raised but did not adopt are not heirs on intestacy.
• Business interests can end up with the wrong people. Shares may pass to family members with no interest in running the business, unless a shareholders’ agreement deals with this.
• Disputes are more likely. Questions about who was a spouse or life partner, and what each heir should receive, are common sources of conflict.

Steps to take now

1. Make a valid will that names your heirs and executor, and complies with the formalities of the Wills Act.
2. Provide for minor children through a testamentary trust and nominate a guardian.
3. Check your marital regime, as it determines what forms part of your estate before the will or intestacy rules apply.
4. If you are in a life partnership, do not rely on the 2024 amendments. Make a will and consider a cohabitation agreement.
5. Align your will with your business arrangements, such as a buy-and-sell agreement.
6. Review your will after marriage, divorce, the birth of a child, a new relationship or a significant change in assets.

How O’Reilly Law can help

Through O’Reilly Fiduciary, we draft wills and testamentary trusts, advise on estate planning for families and business owners, and administer deceased estates, including intestate estates. We also advise surviving spouses, life partners and family members on their rights where there is no will, and assist with disputes about who is entitled to inherit.

Contact us to draft or review your will.

Related reading: Unmarried couples’ rights in South Africa · If your business partner died tomorrow, who would own your business?

This article is general information and not legal advice. Correct as at October 2026.