The Basics

What Is Intestate Succession?

Every South African dies in one of two ways — either leaving a valid will (testate), or without one (intestate). When someone passes away intestate, their estate does not simply dissolve or revert to the state. Instead, a well-established set of rules kicks in automatically to decide where the assets go.

The governing legislation is the Intestate Succession Act 81 of 1987, which came into force on 18 March 1988. Its purpose is clear: to create a fair, predictable framework that distributes a deceased person's estate when they have not expressed their own wishes through a will — or when a will (or part of it) turns out to be invalid.

When no valid will exists, the law does not leave families guessing. It steps in with a structured plan — ensuring that the people closest to the deceased receive their fair share. — Intestate Succession Act 81 of 1987

Before this legislation, South African common law only recognised blood relatives as natural heirs. The 1987 Act made a significant departure from that tradition: spouses and adopted children were formally elevated to the status of intestate heirs, giving surviving partners and legally adopted children the same standing as biological relatives when it comes to inheritance.

Good to know: Your intestate heirs are determined at the date of your death — not the date you became ill, or the date the estate is wound up. This matters enormously if family circumstances change near the end of life.

It is also worth noting that intestate succession does not only apply to an entire estate. If a person leaves a will that is partially invalid — for example, a specific bequest that fails — the remainder of the estate (the part not covered by the valid portions of the will) devolves under the Intestate Succession Act.

02

The Inheritance Order

Who Inherits When There Is No Will?

The Act does not treat all relatives equally. It works through a priority ladder — certain categories of people take precedence over others. The key principle is elegantly simple:

1

Spouse Only (No Descendants)

The surviving spouse inherits the entire estate outright.

2

Descendants Only (No Spouse)

Children and grandchildren inherit the full estate, divided per stirpes.

3

Spouse and Descendants Together

The spouse receives the greater of R250 000 or a child's share; descendants divide what remains.

4

Parents (No Spouse or Descendants)

Both parents inherit equally; if only one survives, the division becomes more nuanced.

5

Extended Family (Collateral Relatives)

Brothers, sisters, aunts, uncles — the nearest blood relatives in degree inherit equally.

One critical point: if a higher-priority category exists, it excludes the lower categories entirely. So if the deceased is survived by a spouse and children, parents and siblings inherit nothing — even if the spouse and children were estranged from the deceased.

Practical tip: The fact that intestate succession follows a fixed formula is precisely why having a valid will is so important. A will lets you override this order entirely — leaving assets to friends, charities, stepchildren, or anyone else of your choosing. Without a will, the law decides for you.

03

Descendants

Children's Inheritance When a Parent Dies Without a Will

When a deceased person leaves children but no surviving spouse, those children inherit the entire estate — divided equally among them. But the picture becomes more interesting when some children have themselves already passed away.

The Act divides estates among descendants per stirpes — a Latin phrase that means "by the branch". This system of representation allows a deceased child's own children (the grandchildren of the original deceased) to step into the shoes of their parent and claim what their parent would have received.

Example: Imagine a deceased person had three children: Anne, Ben, and Cara. Ben has already passed away, but left two children of his own (the deceased's grandchildren). Under intestate succession, Anne and Cara each receive one third of the estate. Ben's two children divide his one-third share between them — getting one sixth each. Nobody is left out simply because their parent predeceased the grandparent.

A stirpes is essentially counted as a "branch" of the family — each living child of the deceased represents one branch, as does each deceased child who left surviving descendants. The estate is first divided at the level of those branches before being distributed within them.

Who Inherits	Status
Biological children	Inherit
Adopted children	Inherit
Children born outside marriage	Inherit
Stepchildren	Do NOT inherit

The Act explicitly provides that being born outside of wedlock does not affect a person's capacity to inherit from a blood relative. In other words, a child born to unmarried parents has the same intestate inheritance rights as a child born within a marriage. Stepchildren, however, are a different matter — a stepchild has no blood or legal relationship with the deceased parent-by-marriage, and therefore inherits nothing under intestate succession unless a will specifically includes them.

Stepchildren are not intestate heirs. This catches many families off guard. If you want a stepchild to inherit, you must include them in a valid will. Under the Intestate Succession Act, they receive nothing automatically — regardless of how close your relationship was.

04

Spouse & Children Together

The Surviving Spouse's Share in an Intestate Estate

One of the most practically important scenarios is where the deceased leaves behind both a surviving spouse and children. Here the law applies a specific formula designed to protect the spouse without disinheriting the children.

The surviving spouse inherits the greater of R250 000 or a "child's share" of the estate. A child's share is calculated by dividing the net monetary value of the entire estate by the total number of children (alive, or deceased but leaving living descendants) plus one (the "plus one" representing the spouse).

Worked Example — Estate Worth R990 000

Survivors: spouse + 2 children. Total shares = 2 children + 1 spouse = 3 shares. Each share = R990 000 ÷ 3 = R330 000. R330 000 is greater than R250 000, so the spouse receives R330 000. Each child also receives R330 000.

Worked Example — Smaller Estate

Survivors: spouse + 3 children. Estate: R600 000. Each share = R600 000 ÷ 4 = R150 000. R150 000 is less than R250 000, so the spouse receives R250 000 (the minimum). The remaining R350 000 is divided equally among the 3 children — about R116 666 each.

This R250 000 floor — raised from R125 000 in November 2014 — exists to ensure that a surviving spouse is never left destitute simply because the estate happened to be small and the couple had many children. The law recognises that the spouse often depends on the estate for their daily living.

Married in Community of Property? If the couple was married in community of property, the surviving spouse already owns half the joint estate by virtue of the marriage — this half never forms part of the deceased's estate at all. The spouse then also inherits from the deceased's half according to the intestate formula above. This means a spouse in community of property is often in a significantly stronger financial position than one married out of community.

Quick facts: R250,000 minimum spouse entitlement · the spouse always counts as one share (+1) · where the marriage was in community of property, the 50% community split happens first, before the intestate formula is applied.

05

When the Immediate Family Is Gone

When There Are No Spouse and No Children

What happens when someone dies without a spouse and without descendants? The estate does not disappear — it moves up the family tree to the deceased's parents, and if the parents have also passed away, to their descendants.

Both Parents Are Alive

Each parent inherits an equal half of the estate. Straightforward and simple — the estate is divided 50/50 between mother and father.

Only One Parent Survives

The surviving parent takes half the estate. The other half goes to the descendants of the deceased parent — meaning the deceased's siblings on that side step in to share that portion.

Neither Parent Left Descendants

If the predeceased parent left no surviving descendants of their own, the surviving parent simply inherits the full estate — even the half that would otherwise have gone to the deceased parent's branch.

This system ensures that the estate flows naturally down each parental line. It avoids scenarios where a perfectly living parent ends up with nothing simply because the other parent predeceased both of them without children.

These rules reflect a deeper principle: the law tries to distribute an intestate estate in the way that most reasonable families would have wanted — keeping assets close to home, balanced between both sides of the family, and never unnecessarily cutting anyone out.

06

Collateral Relatives

Grandchildren, Parents & More Distant Relatives Inheriting

As the inheritance order descends beyond the immediate family, the rules become more intricate — but they follow a logical pattern that always aims to keep the estate within the family bloodlines.

When both parents are deceased — brothers, sisters, and their descendants

If the deceased person has no surviving spouse, no descendants, and both parents have already passed away, the estate passes to the descendants of both deceased parents — which typically means the deceased's brothers and sisters (and their children, if any have also predeceased). The law divides the estate into two equal halves: one half goes to relatives descended through the father's line, and the other half to relatives descended through the mother's line. This "split at the parents" rule prevents one side of the family from monopolising the estate simply because they happen to have more surviving members. Where a relative is descended from both parents — a full sibling, for example — they participate in both halves proportionally.

Only one parental line has surviving descendants

If only one of the deceased parents left any surviving descendants, those descendants inherit the entire estate. The "other half" does not go begging — it simply flows entirely to the side of the family that has surviving members. For example, if the deceased's father predeceased without any other children, and the deceased's mother left two surviving children (the deceased's siblings), those two siblings inherit the full estate equally.

No parents and no descendants of parents — the "last resort" heirs

If the deceased person has truly no surviving spouse, descendants, parents, or descendants of parents, the estate passes to their nearest blood relatives in degree. These might be grandparents, aunts, uncles, or cousins — whoever is closest in family degree to the deceased. All relatives in the same nearest degree inherit in equal shares (per capita) rather than per stirpes. So if the nearest surviving relatives are three cousins, they divide the estate equally three ways — one third each.

What does "per stirpes" vs "per capita" actually mean in practice?

Per stirpes (by the branch): A predeceased heir's share passes down to their own children. Used when distributing among descendants of the deceased. Per capita (by the head): Each surviving heir receives an equal share regardless of which branch they come from. Used for the most remote relatives under section 1(1)(f) of the Act. The distinction matters enormously in large families where some branches have more surviving members than others.

07

Adoption & Inheritance

Adopted Children and Intestate Inheritance

South African law takes a clear position on adoption: when a court formally adopts a child, that child becomes, in the eyes of the law, the full legal child of the adoptive parent — with all the inheritance rights that come with that status.

This means an adopted child can inherit from both adoptive parents and their blood relatives, exactly as a biological child would. Conversely, the adoptive parents and their bloodline can inherit from the adopted child should the adopted child predecease them.

Adoption severs the legal tie to the natural family and creates an entirely new one. For inheritance purposes, the adopted child is simply the child — nothing more needs to be said.

However, there is a flip side: an adopted child cannot inherit from natural (biological) parents or their blood relatives under the intestate rules, and those natural relatives cannot inherit from the adopted child. The legal relationship with the birth family is extinguished at adoption.

Important exception: There is one nuanced carve-out: an adopted child may still inherit from a natural parent who is also their adoptive parent (as happens in some stepfamily adoptions), or from a natural parent who was married to the adoptive parent at the time of the adoption. In these cases, the blood bond and the adoptive bond overlap, and the law preserves both.

Adopted Child Can Inherit From

Adoptive parents, adoptive siblings (as co-descendants), and the entire blood family of the adoptive parents — grandparents, aunts, uncles, and so on.

Adopted Child Cannot Inherit From

Natural (biological) parents or any of their relatives — unless that natural parent also happens to be the adoptive parent or was married to the adoptive parent at the time of adoption.

08

Customary & Religious Marriages

Customary Law Intestate Succession

South Africa is a constitutionally diverse society, and the Intestate Succession Act has been significantly expanded to accommodate families governed by customary law traditions, as well as those in religious marriages that were not formally solemnised.

The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 came into operation on 20 September 2010. Its key effect: the estate of any person who is subject to customary law, died after 20 September 2010, and left no will, must now devolve in accordance with the Intestate Succession Act — rather than under traditional customary succession rules that historically excluded widows and daughters.

Who counts as a "spouse" under customary law?

Under the expanded definition, a "spouse" includes a partner in a customary marriage recognised under the Recognition of Customary Marriages Act. This means a woman in a valid customary marriage has the same intestate inheritance rights as a woman in a civil marriage. Furthermore, South African courts have extended the definition of "spouse" to include parties in Muslim and Hindu marriages — even where those marriages were not solemnised by a registered marriage officer. These partners now have intestate inheritance rights, which was a significant departure from earlier law.

Polygamous customary marriages — how is the estate divided?

In a polygamous customary marriage, where the deceased may have had multiple surviving spouses, the estate is handled as follows: each surviving spouse is entitled to inherit the greater of R250 000 or a child's share, calculated by dividing the estate by the total number of children (plus the total number of spouses). If the estate is too small to pay every spouse R250 000, it is divided equally among all spouses.

The "woman accepted as own child" under customary law

The 2009 Act also recognises a uniquely customary arrangement: a person who, during the deceased's lifetime, was accepted by the deceased under customary law as their own child, is treated as a descendant for intestate succession purposes — even if there is no formal adoption order. This reflects customary practices of child-rearing within extended family systems. Such a person inherits from the deceased who accepted them, but (like a formally adopted child) does not inherit from their natural parents — unless the natural parent is also the person who accepted them under customary law.

Proof of customary relationships: When a customary marriage or customary acceptance of a child affects who inherits, the Deeds Registry requires an affidavit confirming the next of kin — adjusted to clearly describe the relevant relationships. This affidavit must be submitted alongside the other estate transfer documents. Your conveyancer will guide you through exactly what is needed.

When There Is No Will — Who Gets What?