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Possible problems if a person dies intestate
The person’s estate will devolve as per the rules of intestate succession as
discussed above. This distribution of his/her assets may not be in line with the wishes
of the deceased.
The Master of the High Court will nominate an executor, which could develop into a
lengthy process and a delay in winding up the estate.
Where the intestate heirs cannot reach an agreement, this may lead to the assets in
the estate being sold, that would cause a delay in the administration and winding up
of the estate and could lead to additional costs. A sale of property at an unfavourable
time may be necessary.
Depending on the facts of the case, the application of the above rules may lead to
unfairness with regard to certain blood relations of the deceased.
Stepchildren may not inherit on an intestate basis (unless the deceased had legally
adopted them). Adult self-supporting children receive exactly the same share of the
inheritance as the minor children.
Certain assets may also not be apportioned from a legal perspective, e.g. fixed farm
property that may not be owned by more than one person due to legislation
prohibiting this. Intestate succession can thus also cause difficulties in this regard.
Where the deceased owned business interests, intestate succession could also
cause practical problems, especially from a business succession perspective.
Where the deceased has minor children (or even in other circumstances) there may
be a need to make provision for testamentary trusts (and the nomination of trustees
in this regard), nomination of guardians etc. If there is no valid will regulating these
aspects it could lead to practical problems.
Distribution of assets may not be completed in the most tax efficient manner.
If proper estate planning is not done, there may be a cash shortfall in the estate that
could lead to assets being sold to make provision for such shortfall.