What is a child entitled to when a parent dies in South Africa?

What is a child entitled to when a parent dies in South Africa?

When a parent dies in South Africa, a child’s entitlement to the parent’s estate depends on whether the parent left a will and the matrimonial property regime of the parent. Here’s a breakdown of what a child might be entitled to under different circumstances:

If There is a Will:

  • As Specified in the Will: A child is entitled to whatever portion of the estate is designated to them in the will. Parents can distribute their assets as they see fit, although they must comply with the Maintenance of Surviving Spouses Act and the Children’s Act, ensuring that their dependent children’s needs are met.

If There is No Will:

  • Intestate Succession Act: The estate of a deceased person who has not left a will is distributed according to the Intestate Succession Act. Here’s how it generally works:
    • Surviving Spouse and Children: If the deceased is survived by a spouse and children, the spouse receives a child’s share, or the statutorily prescribed amount (currently R250,000), whichever is greater. The remainder of the estate is then divided equally among the children.
    • Only Children Survive: If there is no surviving spouse, the entire estate is divided equally among the children.
    • Representation of Deceased Children: If a child of the deceased has died but has descendants, those descendants may inherit the share their parent would have received, divided equally among them.
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Maintenance Claims:

  • Claims Against the Estate: Dependent children may have a claim for maintenance from the estate until they become self-supporting or reach a certain age, usually 18, though this can extend if the child is still dependent due to being a full-time student or for other reasons.

Family Home:

  • Usufructuary or Lifelong Rights: Sometimes, even if the house is left to the children, the surviving spouse might be granted usufructuary rights, meaning they have the right to use and benefit from the property for their lifetime, after which it reverts to the children.

Trusts:

  • Trust Provisions: If the deceased has established a trust in their will for their children, the trustees will manage the assets on behalf of the children until they reach an age specified in the will.

Guardianship:

  • Custody and Care: If the surviving parent is deceased or unable to take care of the children, another guardian may be appointed either by the will of the deceased or by the court to look after the minor children and manage their inheritances.

Understanding these entitlements is crucial for ensuring that children receive what they are legally due, and for planning estate affairs to protect the interests of minor children after the death of a parent.

Relevant Acts Governing Children’s Entitlement when Parents Die.

In South Africa, several important pieces of legislation govern the rights of children and the distribution of an estate when a parent dies. Here is a list of these acts and an explanation of how each is useful:

1. Intestate Succession Act, 1987

  • Usefulness: This Act comes into play when an individual dies without a will. It outlines the default rules for how the estate is distributed among the surviving spouse and children or other relatives if there is no spouse or children. It ensures that dependents are cared for by providing a framework for equitable distribution of the deceased’s assets.
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2. Wills Act, 1953

  • Usefulness: This Act governs the creation, validity, and execution of wills. It ensures that the intentions of the deceased regarding the distribution of their estate are respected and executed according to their wishes. It also specifies the formal requirements for wills, such as the need for the will to be signed in the presence of two witnesses.

3. Maintenance of Surviving Spouses Act, 1990

4. Children’s Act, 2005

  • Usefulness: This Act provides for the care, protection, and maintenance of children. It sets out the principles relating to the care and custody of children and ensures that their interests are of paramount importance in all matters affecting them. This includes providing for their financial needs through maintenance claims and protecting their inheritance rights.

5. Administration of Estates Act, 1965

  • Usefulness: This Act regulates the administration of the estates of deceased persons. It outlines the processes for appointing an executor, managing the deceased’s estate, and distributing assets according to the will or the laws of intestate succession. It ensures that the estate is managed and distributed in an orderly and legally compliant manner.

6. Trust Property Control Act, 1988

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7. Matrimonial Property Act, 1984

These acts collectively ensure that the rights and needs of children are protected in the event of a parent’s death, that estates are managed and distributed fairly, and that any directives left in wills are properly respected and executed.