Dying Intestate

Dying without a valid will means that your estate will be administered in terms of the Intestate Succession Act. In short, it will be the state (government) who sets out who your heirs will be and in most cases your assets are then inherited by family members who are related to you by blood.

This may not necessarily have been your intention; had you drafted a valid will.

I recall an estate of a gentleman who lived alone for years as all his family members had relocated overseas. The deceased relied on his financial planner who had become a close friend to take care of him.

Challenges

The family were not able to attend the funeral and it was up to the financial planner to arrange everything. 

Searching for a Valid Will and establishing Intestate Heirs.

We found the elderly gentleman’s home to be in a dismal way; papers that were stuck to each other, piles and piles of books and documents that we had to go through to search for documents that would be required to administer the estate. Unfortunately, we were not able to find a valid will and on discussing with the family known to the financial planner – it was established that the deceased had siblings some of whom were known to have predeceased him. The death of these siblings could be verified with a death certificate. However, there was one sibling (a sister) who could not be traced and who the known family had lost contact with.

Sale of Fixed Property and Searching for the Missing Heir.

As there were no heirs presumably in South Africa and because we could not trace the “sister” of the deceased, it was decided to sell the fixed property and contents of the house.

It must be noted here that every sale of a fixed property in a deceased estate, must be approved by the Master of The High Court. This approval is obtained by showing that all heirs have consented to the sale and consented to the sale price. This is to ensure that fixed properties are sold for fair market value and and there is no collusion with the executor/s.

In this case however, this proved to be problematic due to us not having contact with the sister of the deceased. It was then necessary for us to advertise locally for the sister to contact us or for anyone to provide us with her details. Unfortunately, no one came to the fore.

After some time, the Master of The High Court eventually conceded and provided us with the consent to sell the fixed property.

Inheritance – Guardian Fund

As we could not trace the sister, nor could we prove that she had predeceased her brother, she was still legally due a substantial portion of his estate after all the debt had been paid. On finalizing the estate, and not being able to keep these funds in the estate account indefinitely, we are required to deposit the money into the Guardians Fund which is administered by the Master of The High Court. The funds will remain in the Guardians Fund for a period of 30 years. Should no-one come forward to claim the funds ie. the sister or her next of kin, then the funds will be forfeited to the state.

Conclusion

Had this client discussed his will with his financial planner, could he not only have been able to confirm who his beneficiaries should have been, but could probably also have avoided the delays in the estate and a portion of the funds being paid over to the Guardians Fund and perhaps being forfeited to the state.

Your circumstances are unique to you and the importance of proper estate planning cannot be over emphasized.

Should you have any questions in this regard, please do not hesitate to contact your local Sentinel International Office or via our website on www.sentinelinternational.co.za

Authors : Noriah Monangwe