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In this guide
By Onah Attorneys Inc • Updated July 2026 • Legal information, not a substitute for advice on your specific matter.
More than two-thirds of South Africans die without a valid will — and the Intestate Succession Act writes one for them, in rigid formula, blind to promises, feuds and modern families. Sometimes the formula lands close to what the deceased wanted; often it detonates: co-owned homes with in-laws, minors’ money in the Guardian’s Fund, life partners left with nothing. Here is precisely how intestacy distributes an estate.
The order of inheritance
Spouse only: everything. Descendants only: everything, split per stirpes (a predeceased child’s share flows to their children). Spouse AND descendants: the spouse takes the GREATER of R250,000 or a child’s share; descendants split the rest. No spouse or descendants: parents, then siblings (with representation), then closer-degree relatives; only a truly heirless estate ever goes to the state — and only after 30 years unclaimed.
The child’s share formula
A ‘child’s share’ = the estate divided by (number of children + the spouse). Example: R1.8m estate, spouse and two children → child’s share R600,000; the spouse takes R600,000 (greater than R250,000), each child R600,000. Polygamous customary marriages adapt the formula: each spouse takes at least R250,000 or her proportionate share.
Who counts — and who doesn’t
Adopted children inherit fully (biological ties sever except via the birth-parent married to the adopter). Children born outside marriage inherit fully from both parents — illegitimacy is irrelevant to intestacy. Customary marriages (registered or provable), Muslim and Hindu marriages (per Constitutional Court jurisprudence extending recognition) found spousal claims. The gap that still bites: UNMARRIED LIFE PARTNERS — recent jurisprudence (Bwanya) opened doors for permanent life partners, but proving the partnership in court is nobody’s estate plan.
The practical wreckage
The family home inherited jointly by a spouse and children (or in-laws) — co-ownership deadlocks needing court to unwind. Minor children’s cash to the Guardian’s Fund until 18. Businesses without succession direction. No executor nominated — the Master appoints, slower. No guardianship nomination for minor children. Blended families where the formula enriches an estranged biological child and excludes the stepchild raised for twenty years.
What the family must still do
Intestate estates follow the same administration: report to the Master within 14 days, Letters of Executorship (the Master usually requires professional assistance or security for lay executors), creditor advertising, the L&D account, distribution per the Act. Heirs can, by unanimous REDISTRIBUTION AGREEMENT, rearrange the formula’s outcome — the tool that saves family homes from forced co-ownership, if everyone signs.
The fix costs almost nothing
A valid will: your chosen heirs, your executor, guardianship for your children, a testamentary trust keeping minors’ money out of the state fund, and provision for the partner the formula ignores. Drafted professionally in under a week for less than a family dinner out — measured against the litigation intestacy funds, the cheapest document in law.
Frequently asked questions
Who inherits if my husband dies without a will?
You take the greater of R250,000 or a child’s share, children split the balance. No children: you take everything. The formula ignores what he ‘always said’ — only a will speaks.
Does my life partner inherit if we never married?
Historically no — and despite recent Constitutional Court progress for permanent life partners, the claim must be proven in court. A will (or marriage) is the only reliable protection.
Do stepchildren inherit under intestacy?
No — only adopted or biological descendants count. Blended families are intestacy’s most common casualty; the will is the fix.
Can the family change the intestate split?
Yes — all heirs (of age) can sign a redistribution agreement rearranging shares, commonly to give the home to the surviving spouse outright. Unanimity is required.
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