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What happens if I am married and I die without a will?

September 18, 2017

If you die without a will, your assets will be dealt with according to the Law of Intestate Succession. Meaning that there are fixed rules which govern the distribution of your assets. It boils down to the fact that different people than you might have wished for, will get portions of your assets. Dying without a will if you have a domestic partner becomes even more complicated. By making a will you ensure that your assets are disposed of in accordance with your wishes after your death. This privilege is called 'freedom of testation.'


Freedom of testation is the power of a person to make a will and testament specifying whatever heirs they please. It is historically associated with English common law, and contrasted with forced heirship, where part or all of the estate is automatically inherited by the next of kin.


Why should an attorney draft your will?


Attorneys are professionals qualified in law. An attorney can advise you on any problem which may arise with regard to your will. An attorney has the necessary knowledge and expertise to ensure that your will is valid and complies with your wishes.  Often a will is not valid because the person who drafts it does not have the necessary legal knowledge to ensure that the requirements of the law are met.


What happens to your estate if you die without a valid will?


If you die without leaving a valid will, your assets will be distributed according to the provisions of the Intestate Succession Act. The provisions of this Act are generally fair and ensure that your possessions are transferred to your spouse and children. BUT the following problems may arise if you die without leaving a will:

  • Your assets may not be left to the person of your choice.

  • It can take a long time to have an executor appointed. The executor who is appointed may be somebody you may not have chosen yourself.

  • There may be extra and unnecessary costs.

There can be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets. Contact us - if you need information about wills, testaments, trusts, estates, living wills, and other legal matters.

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