When someone dies without a will in South Africa, the Intestate Succession Act 81 of 1987 decides who inherits, and the law applies a fixed formula that takes no account of what the deceased may have promised anyone. A surviving spouse and children inherit first, with the spouse taking R250,000 or a child’s share of the estate, whichever is greater. Where there is no spouse or descendant, the estate passes up and outward through parents, then siblings, then the nearest blood relatives.
The estate still has to be reported to the Master of the High Court within 14 days of the death. The difference is that the family must nominate someone to be appointed, rather than the deceased having chosen that person in advance. That single gap is what turns an ordinary administration of deceased estates into a slow and sometimes contested one.
How deceased estates work when there is no will
Two statutes govern deceased estates in South Africa. The Administration of Estates Act 66 of 1965 sets out the machinery, covering how an estate is reported, who may administer it, and how assets are collected and distributed. The Intestate Succession Act 81 of 1987 supplies the distribution formula that applies where no valid will exists.
Dying intestate does not mean the estate escapes the process. Every step still applies: reporting to the Master, appointment of the person who will administer the estate, notice to creditors, a Liquidation and Distribution Account, and transfer of what remains to the heirs. The only thing missing is the deceased’s own instructions.
The Act applies to the whole estate where there is no will at all, and to part of it where a will exists but fails to deal with everything. A will that leaves the residue to someone who has already died, or that is invalid for want of proper signature, can push an estate into intestacy without anyone intending it. Our guide on when you need a deceased estate lawyer covers what that administration involves in practice.
What is a deceased estate?
A deceased estate comes into existence the moment a person dies leaving property or a document that is or purports to be a will. It is broader than most people assume, and it takes in:
- bank accounts and cash on hand
- immovable property, including a share in a jointly owned home
- vehicles and household contents, including furniture
- shares, unit trusts and other investments
- pension and provident fund benefits, where these are payable to the estate
- money owed to the deceased by other people
- the deceased’s debts, from a bond and credit cards through to the funeral account
The estate is a separate legal entity until it is wound up. Nothing can be transferred to an heir until creditors have been paid and the Master has approved the account. Distributing assets early is one of the most common and costly errors families make.
Who inherits under the Intestate Succession Act
The Act sets out an order of succession that starts with the immediate family and works outward. Where the deceased leaves a spouse but no children, the spouse inherits the entire estate. Where there are children but no spouse, the children share equally, and the descendants of a child who died before the deceased step into that child’s place.
The rule that causes the most confusion applies where both a spouse and children survive. The spouse takes a child’s share or R250,000, whichever is the greater amount, and the children divide the remainder. That R250,000 figure is fixed by the Minister of Justice by notice in the Gazette, so it can change.
A child’s share is worked out by dividing the value of the estate by the number of children who survived the deceased or who died leaving their own descendants, increased by one to account for the surviving spouse. In an estate worth R900,000 with a spouse and two children, the estate divides by three, giving a child’s share of R300,000. The spouse takes R300,000 because it exceeds R250,000, and each child receives R300,000.
Change the numbers and the outcome shifts. In an estate worth R600,000 with a spouse and three children, a child’s share is R150,000, so the spouse takes the R250,000 minimum instead and the three children divide the remaining R350,000 between them. Smaller estates therefore favour the surviving spouse, which is deliberate.
Here is the order of succession at a glance:
| Who survives the deceased | Who inherits |
|---|---|
| Spouse, no descendants | The spouse inherits the entire estate |
| Descendants, no spouse | The descendants share equally |
| Spouse and descendants | The spouse takes a child’s share or R250,000, whichever is greater; the descendants take the rest |
| No spouse or descendants, both parents alive | The parents inherit in equal shares |
| No spouse or descendants, one parent alive | That parent takes half; the descendants of the late parent take the other half |
| No spouse, descendants or parents | The nearest blood relations inherit in equal shares |
Life partners are worth a separate word. Following the Constitutional Court judgment in Bwanya and the Judicial Matters Amendment Act 15 of 2023, which took effect on 3 April 2024, a surviving partner in a permanent life partnership with reciprocal duties of support can inherit on intestacy.
That protection is real but it is not automatic, because the surviving partner has to prove the relationship and the duty of support, and other heirs can contest it. Customary marriages are recognised, and where there is more than one spouse each is entitled to a child’s share or the R250,000 minimum.
How the Master of the High Court appoints an executor
The estate must be reported to the Master’s office in the area where the deceased lived, within 14 days of the death. Reporting is done on prescribed forms, and an intestate estate generally calls for:
- a completed death notice
- the original or a certified copy of the death certificate
- a next-of-kin affidavit confirming who the surviving family members are
- an inventory setting out the assets and their values
- the marriage certificate or acceptable proof of the marriage
- certified copies of the identity documents of the deceased and the heirs
- written nominations by the heirs of the person they want appointed
The next-of-kin affidavit matters more in an intestate estate than in any other, because it establishes the pool of people entitled to inherit. An incomplete or inaccurate affidavit is one of the quickest ways to have the file queried and the appointment delayed.
With no will naming an executor, the heirs nominate someone for the Master to appoint. Disagreement between heirs at this stage stalls the estate before it starts, and the Master will not proceed on competing nominations. Families who cannot agree often end up appointing an independent professional simply to break the deadlock.
The value of the estate determines what the Master issues. An estate worth more than R250,000 requires Letters of Executorship and the full procedure under the Administration of Estates Act. Where the estate is worth R250,000 or less, the Master may dispense with that and issue a Letter of Authority under section 18(3), which allows a nominated representative to wind the estate up on a simplified basis.
Security is the other difference. A nominated executor may be required to furnish a bond of security to the Master, though the parent, spouse or child of the deceased is exempt, as is an executor whom a will has exempted. Where minors inherit and no testamentary trust exists, their money is paid into the Guardian’s Fund and held until they turn eighteen.
What to do when a parent dies and you are not the executor
You still have standing, and you should use it. As an heir in an intestate estate you are entitled to:
- know that the estate has been reported and what file number it carries
- be told who the Master has appointed and on what authority
- inspect the Liquidation and Distribution Account once it is advertised
- object to that account if the assets, debts or shares are wrong
- receive your inheritance once the account has been confirmed
Start by asking the executor in writing for the estate file number and confirmation of what has been reported. A written request creates a record, which matters if the estate later stalls.
The account lies open for inspection at the Master’s office and the relevant magistrate’s court for a period after it is advertised under section 29. That inspection window is the moment to check that assets have been correctly valued, that debts are properly accounted for, and that the distribution matches what the Intestate Succession Act requires. Objections raised after the account is confirmed are far harder to pursue.
Where an executor is not communicating, is delaying without explanation, or appears to be acting in their own interest, section 54 of the Administration of Estates Act allows for removal from office, by the Master or by a court depending on the grounds relied on. Courts do not order removal lightly, so the evidence matters. Complaints go in writing to the Master’s office handling the estate, with the estate reference number, and taking advice before that point is usually cheaper than litigating afterwards.
How do I check the status of a deceased estate
Your starting point is the estate file number allocated by the Master when the death was reported. With that number you can enquire directly at the Master’s office dealing with the estate. The Department of Justice also runs the ICMS web portal, which lets you search reported estates and see which Master’s office holds the file, and its Deceased Estate online system now allows estates to be registered without attending in person. Enquiries without a reference number are considerably slower.
Executors and their attorneys receive correspondence from the Master directly, so an heir represented by a firm should ask that firm first. Estates in the busier offices, including the Master’s office in Pretoria, move at the pace of the queries raised on the file, and an unanswered query can leave an estate dormant for months without anyone being told.
Realistic expectations help. A straightforward estate takes several months, while an estate with immovable property, a business interest or a dispute among heirs commonly runs beyond a year. Intestate estates sit at the slower end of that range because of the appointment step at the beginning.
Why drafting a will avoids these complications
A will replaces the statutory formula with your own instructions. You choose who inherits, in what proportions, and on what terms, rather than accepting a division that the Act applies uniformly to every family. That matters most in the situations the formula handles badly, such as a blended family, a life partner you never married, or an heir with particular needs.
A properly drafted will does several things the statutory formula cannot:
- names the people who inherit and the shares they take
- appoints your executor, removing the nomination step that delays intestate estates
- can exempt that executor from furnishing security to the Master
- can create a testamentary trust so a minor’s inheritance is managed rather than paid into the Guardian’s Fund
- can provide for a life partner, a stepchild or anyone else the Act would overlook
- can leave specific items to specific people, which heads off the arguments that follow silence
Estate planning through a properly drafted will is materially cheaper than the disputes it prevents.
Requirements for validity are strict, and a homemade will that fails on signature or witnessing can send the whole estate into intestacy. Reviewing an existing will after a marriage, a divorce, a birth or a significant purchase keeps it aligned with your circumstances.
SB Lawyers administers deceased estates from its offices in Pretoria and Nelspruit, handling the reporting, the Master’s appointment and the full administration through to final discharge, alongside will drafting and estate planning. If a family member has died without a will, or you want your own affairs put in order, the team can advise you on where to start.