Cheatography

# Study Unit 3: Intestate Succession Application Cheat Sheet by Euphoria_

Application of Intestate Succession. 1st Parentala always divided to first. A always desceased.

### a) Survived by Spouse but no descen­dants

 The surviving spouses will inherit the entire estate even if the deceased is survived by parent­s/s­iblings If there is more than one spouse - they will share the estate equally.

### b) Survived by descen­dants, but no spouse

 Descen­dants inherit the entire net estate. Note: In the 1st Parentela division of an intestate estate between mupltiple descen­dants occurs per stirpes. (ISA s1(4)(a)) A has 3 kids (B; C; D dead w 2 kids). B and C will get a third each. D's kids has 1/6 each

### C) Survived by spouses and descen­dants

 Died after 24 Nov 2014 Spouse/s inherits childs portion OR amt determined from time to time by Minister of Justice & Correc­tional Services through the Gov Gazett - whichever amount is greater. The amount stipulated for after 24/11/14 = R250K. Before = R125K Child's portion: Net monatary value of estate­/(no. of stirpes + no. of spouses) Residue is spread among descen­dants Note ISA s 1(4)(a) in terms of first parentela Example: A - 2 spouses (X and Y); 3 children (B; C dead w 1 kid G; D Dead w 2 kids E & F). 5 Stripes. 950K/5 = 190K. 250K > 190K. Therefore X and Y get 250K each = 500K. Residue = 450K divided between As descen­dants per stripes with repres­ent­ation. 450K/3 = R150K. G gets R150K; E & F get R75K each.

### Effect of Disqua­lif­ica­tio­n/R­enu­nci­ation by Heir

 ISA s1(7) Any benefit which they would have received if they hadn't been disqua­lif­ied­/hadn't renounced shall devolve as if they died immedi­ately before the death of deceased and, if applic­able, as if they was weren't disqua­lified Appplies only if s 1(6) is not applicable on the facts at hand The disqua­lified or renouncing heir is regarded as having predec­eased the deceased Example E's estate = R600K. \$ kids (A, B C (dead) and D (murdered E - disqua­lified - 2 kids G &F). S 1(7) directs that D must be treated as if D had predec­eased E. Three Stripes: (A, B, D). A & B get 600K x 1/3 each. G & F get 600 x 1.6 each. If D had no descen­dants, A&B would share). ISA s1(6) If a descendant of deceased, excl. a minor/­men­tally ill descen­dant, who, together with the surviving spouse of the deceased, is entitled to a benefit from an intestate estate renounces his/her right to receive such a benefit, such benefit shall vest in the surviving spouse. Applies only when: 1. a major and mentally healthy descendant of the deceased 2. renounced his/her right to inherit intestate from the deceased and 3. that descendant and the deceased’s surviving spouse are both be entitled to benefit from the deceased’s intestate estate 4. that descendant and the deceased’s surviving spouse are both be entitled to benefit from the deceased’s intestate estate Example: E's estate = R1.2mil. Has wife V. Same child situation as before. 3 stripes + wife V, A, B and D each inherits a child’s portion of R300 000. D renounced. S 1(6): the renounced share vests in V as the surviving spouse and will not go to G and H by repres­ent­ation

### D) Only Survived by both parents

 Parents inherit net estate in equal shares. Authority: 2nd parentela division of an intestate estate between multiple descen­dants occurs per stirpes with repres­ent­ation ( ISA s 1(4)(a) )

### e) 1 parent & descendant of deceased parent

 Surviving parent inherits half the estate and descen­dants of deceased parent inherit the other half. If deceased parent is not survived by a descen­dant, the surviving parents inherits the entire net estate. Example: E's parent = M(dead) & P. M survived by A from 1st marriage; B & C from marriage with P. R750K go to P. M has 3 stripes = R750 x 0.33.

### f) Only descen­dants of deceased parents

 Net estate if split into 2 equal parts (one for descen­dants of each parents). Authority ISA s 1(4)(a) in terms of 2nd parentela Example: E's parents = P & M (2nd marriage). P has 4 children: C (dead with children D&F), B, H (prev marriage), E is dead. M has children 4: C ( dead with children D&F), B, G (prev marriage), E is dead. estate worth R1.2M R600K divided amg P & M's descen­dants respec­tively. P has 3 stripes: H (from prev marriage); B surviving child; C deceased with descen­dants H & B get R200K (1/3 x 600K). D & F (1/3 x R600K)/2 M has 3 stripes: G(prev marriage); B; C. G & B get R200K (1/3 x 600K). D & F (1/3 x R600K)/2 G = R200K; D = R200K; F = R200K; B = R400K; H = R200K

### g) Descendant of one deceased parent.

 The descen­dants of the deceased parent inherit the entire intestate estate. Note ISA s 1(4)(a) in terms of 2nd parentela

### h) Only relatives in 3rd parent­al/­further

 Net estate divided equally among those most closely related by degree to the deceased. In the 3rd/fu­rther parentelae an intestate estate isnt divided per stirpes but per capita according to the Roman-­Dutch principle ‘die naaste bloed erf die goed’ (the nearest blood relati­ve(s) inherit(s) the estate) Example: E's Cousin I and deceased cousin's (K) child L. I inherits E's entire estate because I is related to E by one degree less than L. If K was alive, I and K would split inheri­tance.

### Child Born Out of Wedlock

 ISA S 1(2): [H]aving been born out of wedlock shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation This is thus treated the same as other intestate inheri­tance cases, with the exception adoption.

### Postion of the Adopted Child

 Their position is determined through a reading - together of s 1(4)(e) and 1(5) of the Intestate Succession Act with s 242(3) of the Children’s Act 38 of 2005 These provisions instructs that an adopted child is regarded as the child of the adoptive parent and not their biological parent.. Therefore, an adopted child can inherit intestate from his/her adoptive parent and vice versa. This relati­onship does not exist between the bio parents Exeption in ISA s 1(4)(e­)(ii) : An adopted child remains a descendant of his/her natural parent for purposes of intestate inheri­tance if: (i) the natural parent is also the adoptive parent or (ii) the natural parent was married to the adoptive parent at the time of the adoption. Example: M is divorced with a child (E) and marries X. X then adopts E while married. If E dies, both parents inherit due to exception.