“My husband died without a will. We were married under customary law and I want to know what will happen to his money. We have two young children,” writes Nomsa.

Maya replies: Having a will in place that provides instructions on how your money should be divided should you pass away, not only ensures your wishes are carried out, but also allows the estate to be finalised timeously allowing the beneficiaries to receive the money sooner rather than later.

In the case where there is no will the law does make provision for how an estate is to be divided but this may not be the way you want it to.

According to Graham McPherson, Deputy Chairperson of FISA (Fiduciary Institute of South Africa) the term “spouse “ for the purposes of income tax, estate duty, and donations tax, includes a partner in a marriage or customary union registered in terms of the laws of the Republic.

This can be a complex area of Law. If married under the Black marriages Act, before a specific date then the marriage is out of community of property, whereas after a specific date the same marriage is deemed in community of property.

If we assume that you married after 1998, under the the Recognition of Customary Marriages Act 120 of 1998 then the marriage under customary law carries the same rights as a civil marriage and you would be considered to be married in community of property.

Under the rules of community of property the surviving spouse will receive half of the estate. He or she will also receive R125 000 or a child’s share of the remaining portion whichever is the greater. This would be determined by the amount of money and how many children there are.

For example if your husband left R1 million, you would receive R500 000 as your portion under community of property. The remaining R500 000 would be divided between your two children and yourself, in this case it would work out at R166 666 each.

In comparison, if your husband left R300 000, you would receive R150 000 and a further R125 000 of the remaining R150 000 with the balance going to your children.

It is important to remember that when you are married in community of property it includes you’re your assets and your husbands. In other words, if your husband had no assets or money and the assets are in your name only ( say money in your bank account) then your money forms part of the joint estate, which is then divided in terms of the Intestate succession Act. This can have serious consequences on you.

As the children are under 18, the funds due to them need to be paid to the Master of the High Court’s Guardians Fund, and not directly to you or the minor children. If your husband had a will he could have instructed a testamentary trust to be created on his death or have left his entire estate to you to provide for the children.