E mma’s father recently passed on.
He didn’t have a will and left behind three kids and a wife.
Emma was born before her father was married and is, therefore, not born of her father’s marriage.
Her stepmother is trying to keep her from inheriting from her father’s estate, and she needs to know what her rights are.
In terms of our law, where a person dies without a will, the Intestate Succession Act will apply.
This Act determines who is entitled to inherit what from the deceased’s estate and the order of preference for distributing the estate.
People inheriting from the estate are referred to as beneficiaries, and the order of preference for them is the spouse of the deceased, descendants (children) of the deceased, parents of the deceased (only in cases where the deceased had no children or spouse) and the siblings of the deceased (if both of the deceased’s parents are predeceased).
In Emma’s case, her father’s estate has four beneficiaries: Emma, her two siblings and stepmother.
The fact that Emma wasn’t born of the marriage holds no significance, as the Act grants an illegitimate child the right to inherit from both her blood relations – like a legitimate child.
As far as how the estate is shared: if the deceased was married in community of property, then the spouse (Emma’s stepmother) will inherit half the estate, or the equivalent of a child’s share, whichever is greater. The kids will then share equally in the remainder of the estate.
To ensure the deceased estates are wound up correctly and the heirs have their rights protected, deceased estates need to be lodged with the Master of the High Court.
If the value of the estate is less than R250 000, then the master will issue a letter of authority to the person nominated by the deceased’s family.
This letter allows that person to administer the estate, claim from any policies the deceased had and ensure the beneficiaries receive their shares of the estate.
If the estate’s value is more than R250 000, an executor has to be appointed after the estate has been lodged with the master.
The value of the estate requires that the full procedure, as set out in the Administration of Estates Act be followed. This process includes having a full account of the deceased’s assets and liabilities being drawn up in an L and D account.
This has to be approved by the master and thereafter laid out for inspection by creditors and anyone having a valid interest in the estate. This process requires a knowledge of estate law, so it’s advisable that an attorney be appointed as the executor.
To ensure her rights are protected, Emma needs to visit the master’s office in her father’s area to ensure his estate has been reported. If it has, she is to check that her name is among the beneficiaries listed.
The estate controller assigned to her father’s estate will assist her with her concerns. If the estate is not being administered legally, the person with the letter of authority, or the executor, will be summoned to the master’s office to answer to the irregularities.
- This article is a summary of the law applying to Intestate Succession and it is therefore advisable to seek legal advice for specific situations. Where a beneficiary is a minor, help can also be sought from Legal Aid.
