Who inherits under a Deceased Estate when there is no Will?

02 April 2024 ,  Sinethemba Mashego 96

It is society's norm to transfer generational wealth and to engage in the re-allotment of wealth. However, some people are uninformed about the rules that govern the re-allotment of wealth when they have not drafted a will. Leaving their descendants in a state of confusion after they have passed away about who inherits the deceased estate. In this article, I will critically discuss how a deceased estate’s assets will be disposed of when the deceased dies intestate.

When the deceased dies without having written a valid will, they are said to have died intestate. If the deceased did not include all of their assets in the will, the assets not disposed of in the will, shall be dealt with according to Intestate Succession Act, hereinafter referred to as the Act. Section 1(4)(b) of the Act makes provision for this. The Intestate Succession Act 81 of 1987 sets out the rules as to how the deceased’s estate will be distributed.

To inherit under interstate succession, the degrees of the relationship must be determined to know who will inherit. There is the direct line, which includes the number of generations between the deceased and the descendants that are blood-related. The collateral line is individuals who are not direct descendants of the deceased but share a common ancestor.

For intestate succession, adopted children are considered to be descendants of their adoptive parents according to section 1(5) of the Intestate Succession Act. It is important to note that even though illegitimate children’s right to inherit from a blood relation is not affected, half-blood children can only inherit from the parent they are related to. Full-blood children are entitled to inherit from both parents.

Practical application of who inherits:

      If the deceased is survived by their spouse the following will be applicable:

  • Surviving spouses will inherit the full estate of their deceased spouse if there are no descendants. Section 1(1)(a) of the Act.
  • If the deceased is survived by more than one spouse the spouses will inherit in equal shares.
  • Should the deceased be survived by their surviving spouse and descendants, the surviving spouse inherits whichever is greater between R 250 000 and a child’s share. A child’s share is determined by dividing the intestate estate by the number of surviving children of the deceased (if predeceased, their children will be included), plus the number of surviving spouses.
  • If the estate of the deceased was R 1 200 000

Child’s share: R 1 200 000 ÷ 3 (2 children plus the surviving spouse) = R 400 000 child’s share

The child’s share is greater than R 250 000 therefore the spouse will inherit the child's share (section 1(1)(c)(i) and section 1(1)(c)(ii) of the Act.

     If there is no surviving spouse but the deceased has descendants:

  • The descendants of the deceased will inherit. If the descendant is predeceased but has children, their children will inherit the parent’s share. The children are said to inherit per stripes according to section 1(4)(a) of the Act.


    If there are no surviving spouses and there are no descendants:

  • If a deceased is survived by one of their parents but not survived by their spouse or descendants, the parent will inherit.
  • Section 1(1)(d)(ii) of the Act states that the surviving parent is entitled to only one-half of their deceased child’s estate because the other half is said to have gone to the other predeceased parent.
  • If the deceased is survived by both parents, they inherit equally in terms of section 1(1)(d)(i) of the Act.

    If there are no surviving spouses, no descendants, parents are predeceased:

If the deceased is not survived by their spouse, descendants, or their parents, each parent's descendants will inherit in equal shares. If there are no descendants that survive the other parent, the one with surviving descendants will inherit the entire estate. It is often presumed by members of the deceased’s family that they will automatically inherit when their loved one has passed away without a valid will. The Intestate Succession Act protects the interests of the surviving spouses and descendants in the direct line. The Intestate Succession Act is a guideline to know who will inherit in the direct line and the collateral line.