In most situations, this is nothing more than a myth. If one dies without a will, your assets (including your money) will be distributed to your legal or biological next-of-kin surviving you under the Intestate Succession Act (the “Act”). Under the Act, the following persons may be entitled to share in the distribution, under the rules prescribed therein:
- Spouse
- Legal or biological child
- Parent
- Brother/sister (or if deceased, their children)
- Grandparent
- Uncle/aunt
Only rarely, in cases where there is no will and no distribution is possible as there is no next-of-kin as set out above, will the deceased person’s assets be distributed to the state.
Separately, we specify “legal or biological next-of-kin” because, under the Act, only biological or legally adopted children are entitled to claim against their natural parent’s estate. A “child” as defined under the Act does not include step-children, nor does it include persons who are not legally adopted.
In this regard, if you have step-children or children who you have long treated as your own (but did not legally adopt) and you wish your assets to pass to them on your death, we strongly advise that you create a will to provide as such. The law will not otherwise recognise their entitlement to your estate, no matter how the evidence may point to the presence of a paternal/maternal bond between you and them.