What happens if I don’t have a will?
If you die without a will you cannot control who inherits your estate. Without a will the distribution of your estate is determined by the laws of intestacy and the courts. Under WESA, on intestacy an estate will be divided in the following manner:
- The spouse receives the first $300,000 of the estate, if the deceased has no descendents.
- The spouse receives the first $150,000 of the estate, if the deceased has one or more descendents.
- If the deceased was survived by a spouse and descendants, the remainder of the estate will be divided one-half to the spouse and one-half between the descendents.
- If the deceased leaves no spouse or descendents, the estate passes under the new “parentelic scheme” to the deceased’s parents; and if neither parent is alive then to the descendents of the parents. If there are no living descendents of the parents, the estate passes to the deceased’s grandparents, or their descendants.
- If there are no relations within the ‘parentelic scheme’, the estate passes to the government.
- If the family home was registered in the name of the deceased, the spouse no longer has a life interest in the family home; instead the spouse has a right to acquire the home within 180 days of the representation grant.
Dying without a will also means that you have not appointed a personal representative of your estate, or a guardian for your children. Personal representatives and guardians will need to be appointed by the court which may be a lengthy and costly process.
Benefits of Having a Will
- Naming a Personal Representative – this allows you to appoint someone who will administer your estate after your death. This ensures that you have someone you trust fulfilling your wishes under the will.
- Ensure that your children are taken care of by someone you trust – naming a guardian in your will for your minor children helps to avoid costly litigation in determining the appropriate guardian.
- Specific gifts – a will allows you to specify who you wish to receive your personal belongings, and make monetary gifts to your beneficiaries. Gifts to family, friends or charities must be named in the will. Without a will these people do not have a right to these gifts.
- Controlling the distribution of your estate – this allows you to decide who will be a beneficiary of your estate and what they will receive.
- Funeral instructions may be contained in the will allowing your family and personal representative to make arrangements in accordance with your wishes.
- Reduces the cost of administrating an estate; avoiding lengthy and costly intestacy application.
- Helps avoid disputes. A will helps your family know your wishes on how to distribute your estate and can potentially reduce the prospect of family disputes regarding your intentions.
Further information on Trusts and Estate Law .
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.