Testate vs Intestate Succession

What happens to your estate after death depends, in large part, on whether you leave a valid will.

If you leave a valid will, your estate will generally be distributed according to the wishes recorded in that will. If you die without a valid will, the law determines who inherits from your estate.

What is testate succession?

Testate succession applies where a person dies leaving a valid will.

The will determines who should inherit from the estate, subject to applicable law. This allows the testator to decide, for example:

• who should inherit;

• what particular assets or amounts certain beneficiaries should receive; and

• how the remainder of the estate should be distributed.

The Wills Act 7 of 1953 governs, among other things, the formal requirements for executing a valid will.

This is one of the main reasons why having a valid will is important: you are able to record your own wishes about the distribution of your estate.

What is intestate succession?

Intestate succession applies when a person dies without a valid will.

It can also apply where a valid will exists but does not dispose of the entire estate. In that case, the portion that is not dealt with by the will may devolve according to intestate succession (in law, this is known as being partly testate and partly intestate).

The Intestate Succession Act 81 of 1987 determines who inherits and in what order. Depending on who survives the deceased, the estate may pass to people such as:

• a surviving spouse;

• descendants, such as children;

• parents;

• siblings or other relatives; or

• ultimately, in limited circumstances, the State.

The important point is that the deceased does not choose this order after the fact. The law does.

Why does the difference matter?

A valid will gives you greater control over who benefits from your estate.

Without one, even if your family knows what you would have wanted, your estate will generally have to be distributed according to the rules of intestate succession rather than according to informal wishes or family understandings.

That does not mean intestate succession is a punishment. It provides a legal system for distributing an estate when there is no valid will. But it may produce a different result from the one the deceased would personally have chosen.

Useful resources

Intestate Succession Act 81 of 1987

Sets out the legal rules governing intestate inheritance.

Read the Intestate Succession Act

Master of the High Court: Intestate Succession

Provides plain-language explanations and examples of who may inherit where there is no valid will.

Visit the Master’s Intestate Succession resource

Wills Act 7 of 1953

Contains the legal rules governing the execution of wills.

Read the Wills Act

Make your wishes known. Make them legally valid. Decide what happens to your estate.