Law of Succession

The law of succession is the totality of the legal rules which control the transfer of those assets of the deceased which are subject to distribution among beneficiaries, or those assets of another over which the deceased had the power of disposal.

The law of succession fulfils an important economic function as it regulates the transfer of wealth upon a person’s death. This function is supported by the principle of freedom of testation. The law of succession also fulfils a social function, this function is associated particularly with maintaining and protecting the family as a social unit.

Understanding testate and intestate law of succession

The person who dies is known as the deceased. If he has left a valid will he is also referred to as the testator. The estate of the deceased usually consists of assets and liabilities but only the assets pass to the beneficiaries. All the assets that can be divided are the assets subject to distribution. The process by which the estate’s debts are paid and the assets transferred to the designated beneficiaries after the testator’s death is known as the administration of the deceased estate. The estate is administered by an executor in terms of the provisions of the Administration of Estates Act 66 of 1965.

If a person dies intestate, his assets are inherited in accordance with the rules of the law of intestate succession. These rules are contained in the Intestate Succession Act 81 of 1987. This determines who the deceased’s heirs are in so far as he did not do so himself or in as much as it is not possible to execute his legally valid wishes. If a testator dies testate his estate is inherited wholly or partially in accordance with the rules of the law of testate succession.

A will is a unilateral declaration of the wishes of the testator in which he sets out the way his assets must be apportioned after his death to designated persons or institutions.