Wills and Estates

Wills and estates – Part I

AS a legal consultant actively involved in the administration of deceased estates, the drafting of wills and matters incidental thereto, I receive many queries from family members and other interested parties. I endeavour as far as possible to respond to these and, in the process, eliminate certain misconceptions.
This series of questions and answers have been arranged sequentially so as to maintain some semblance of order.
Q.What happens to my estate if I leave no will?
A. The assets are distributed according to the laws of intestacy.
Q.How does intestate succession operate?
A. Itis governed by the Intestate Succession Act no 81/1987(as amended).
Q. Is there a particular formula?
A. Yes- where the deceased left no descendants the surviving spouse inherits the greater of 1) a child's share, or 2) so much of the intestate estate as does not exceed in value the amount fixed from time to time by the minister of justice (the current amount is R125'000). Of course, should there be no descendantsand no spouse, the devolution route is more complicated.
Q.Is it true that a deceased's estate can be taken by the State?
A.Only when there is a total failure of blood relations is the estate forfeited to the State. It is the duty of the executor to conduct a thorough investigation to try and establish the existence of a relative.
Q.How is the degree of relationship between the deceased and blood relations of the deceased determined?
A. 1) In the direct line, the number of generations between the ancestor and the deceased or the descendant of the deceased as the case may be,e.gthe father of the deceased is related to him in the first degree, as is the son of the deceased; or 2) in the collateral line, the number of generations between the blood relations and the nearest common ancestor, plus the number of generations between such ancestor and the deceased. Thus an uncle of the deceased is related to him in the third degree.
Q. How is an executor appointed if someone dies intestate?
A. Generally speaking, the next of kin will agree as to whom should be appointed and that recommendation and acceptance by the nominee to act (on the prescribed forms) are sent to the master who then issues what is known as an Executor Dative appointment.

Author: Louis Nel - Mosdell Pama & Cox Knysna

For more information on these matters, please call our office at 305 548 5020.

Twitter: www.twitter.com/yoelmolina_mo
Faceback page: www.facebook.com/lawofficeofyoelmolina
Linkedin profile: http://tinyurl.com/linkedinpagemo
Blog: http://tinyurl.com/molawblog

"Turn to us when you need help"