Intestacy is where a person dies without having made a Will or where the Will they have made is found to be invalid. The consequence of this is that the Succession Act of 1965 directs the division of the assets in accordance to the blood relationship to the deceased person. If there are no living blood relations surviving the deceased then the deceased’s assets are forfeited to the State.
The following is a chart to help define the Order of Entitlement on Intestacy:
|Relatives Surviving||Distribution of Share|
|Spouse and children||Spouse two thirds, children one third|
|Spouse and no children||Spouse takes all|
|Children and no spouse||Children take all|
|Parents & siblings||Each parent takes half|
|One parent & siblings||Parent takes all|
|Siblings only||All take in equal shares, with children of a predeceased sibling taking their parent’s share|
|Nephews & nieces only||All take in equal shares|
|Uncles & aunts||All take in equal shares|
|First cousin, great uncle/aunt, great nephew/niece||All take in equal shares|
Legal rights of Spouses – The Legal Right Share
Section 111 of the Sucession Act, 1965 states that ‘if a Testator/Testatrix leaves a spouse and no children, the spouse shall have a right to one half of the estate. If the Testator/Testatrix leaves a spouse and children, the spouse shall have a right to one third of the estate.
The priority of this Legal Right Share is protected under Section 112 of the Act by stating, ‘the right of a spouse under Section 111 (which shall be known as a legal right right) shall have priority over devices, bequests and share on intestacy’.
The spouse does not have to go to Court to get their Legal Right Share. The Executor is obliged to grant this share where applicable.
If a Testator/Testatrix makes a bequest in the Will that increases the spouse’s legal right share, and it does not specify that this gift is meant to be in addition to the legal right share, the Executor may consider it part of that share and not an extra element to it. The spouse can choose to take either the assets specified under the Will or the legal right share.
The Executors must inform THE spouse in writing of his or her right to choose between these two options and the spouse must exercise this right within 6 months of receipt of notification or within 12 months of the taking out of the Grant of Representation
Legal rights of Children
Unlike a spouse, children do not have any absolute right to a specified share in a deceased persons’ estate.
What a child is entitled to in a Testate (a Will has been made) situation depends entirely on the Will. However, a child may make an application to court if he/she feels that he/she has not been adequately provided for. It is important to seek legal advice before making such an application. An application must be made within 6 months of the taking out of a Grant of Representation. The court then has to decide if the parent has failed in his/her duty to the child in accordance with the needs of that child. Each case is considered individually and it most be pointed out that the spouses right to their legal right share must not be infringed in order to give the child a greater share of the estate.
In an intestate situation (no Will has been made), if an intestate dies leaving a spouse and issue than the spouse takes two thirds and the remaining one third is distributed among the issue in equal shares if the issue are in equal relationship to the deceased, and , if not, per stirpes.
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