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Chapter 8 - Family Law and Violence against Women

Death

When a person dies, the family must report the death to the Registrar of Births and Deaths at the Department of Home Affairs. They must do this as soon as they can practically do so.

As soon as the Registrar is satisfied that everything is in order, he or she will give the family a burial order. This is a certificate that says the dead person can be buried. Usually a burial cannot take place without a burial order.

The family must also report the death to the Master of the High Court within 14 days if the person who died left any property or left a will.

When people die, their belongings and property are given to people called their heirs. These are usually members of their family. The way this is done depends on whether or not the dead person left a will. A will is a document setting out how someone wants to share out his or her property after death.

The property a dead person leaves is called an estate.

Dying without a will

When a person dies without leaving a will, the law says the person died 'intestate'. The law of intestate succession is followed in dividing up his or her property.

If a married person dies intestate, his or her property is shared equally by the other spouse and their children except that the spouse will get at least R125 000 so if the estate has less value than this, the children won’t get anything. There are complicated rules for deciding who gets the property if the dead person leaves no spouse or children. You should ask an attorney for advice on this. If the dead person leaves no blood relatives at all, the property will go to the government.

If a couple are married according to African customary law, the same intestate rules set out above will apply. They will follow the same intestate rules set out above.

Domestic partnerships (‘vat en sit’)

There is a common misunderstanding that the law recognizes common-law marriages. Many people who have lived together for a period of time believe that they are entitled to a portion of what their partner owns. This is not true. It does not matter how long the parties have lived together there is no automatic legal protection for people who live together. If the people who live together are not married to each other, the partners cannot inherit property from one another without a will. No valid marriage means no legal protection.

Domestic partners can apply to the court to have a universal partnership declared. This is not easy because the person seeking a universal partnership must prove to the court the contributions that he or she made in the deceased person’s estate. A will is the best way for people in domestic partnerships to protect themselves. Children born in domestic partnerships can claim for maintenance from both parents.

Dying with a will

It is important for people to make wills. In a will people can say what they want to happen to their property after they die.

Any person over the age of 16 can make a will, as long as they know and understand what they are doing. In a will you can leave your property to anyone you wish - wives, husbands, children, relatives, friends or strangers.

When you have decided how you want to divide up your property, you must decide who will do this for you when you die. The person you choose is called an executor. If you don't choose an executor, the Master of the High Court will name someone executor, usually a member of your family.

You must make a will in writing. You can choose any two people older than 14 as witnesses. But they must not be people that you left anything to in the will, or the executor. You must sign the will on every page and at the end, in the presence of the witnesses. The witnesses must also sign on every page and sign in full at the end.

Problem 9: Making a will.

Example of a simple will.

Winding up a dead person's estate

A member of the dead person's family or a close friend must report the death to the Master of the High Court within 14 days if the deceased person had any property or left a will. If they do not do this, it is a criminal offence. They must get a form called a Death Notice from the Master's office and fill it in. Anyone who has a copy of the will must also send it to the Master of the High Court.

The dead person's husband or wife, or nearest relative or close friend must also send an inventory form to the Master within 14 days of the death. This is a list of all the property that belonged to the dead person.

All this property is called the estate. The estate has assets and liabilities. Assets are all the things the person owned. Liabilities are the person's debts.

The dead person's estate does not go straight to the heirs. It first goes to the executor.

The executor must draw up an account, adding up all the person's assets. Then the executor subtracts all the debts from this amount. The executor must pay any income tax the dead person owed, and also pay the 'death duties' tax on the estate. The executor sends the account to the heirs and to the Master of the High Court. When the Master is satisfied, and the debts are all paid, the rest of the property goes to the heirs.

If things are complicated, for example if the estate cannot pay all the debts, the executor should consult an attorney to help.

If the dead person's property is worth less than R125 000, the Master may say an executor is not necessary. The Master then gives directions as to how the estate is to be dealt with and usually gives the dead person's husband or wife permission to keep all the dead person's property unless they leave a will giving it to someone else.