10 Common Estate Planning Mistakes That Could Cost You

Common estate planning mistakes in South Africa include dying without a will, signing a will that does not comply with section 4(1) of the Wills Act 7 of 1953, and failing to update a will after marriage or divorce. Other serious problems include overlooking estate duty and capital gains tax on death, appointing an unsuitable executor, and failing to protect minor children. These mistakes can usually be corrected during life, but after death the consequences fall on the surviving family.

Why Estate Planning Mistakes Are Costlier Than Most People Realise

Estate planning is not only about deciding who receives assets. It also determines who administers the estate, how quickly the estate can be finalised, whether there is enough cash to settle liabilities, and how vulnerable children or other dependants may be. A defective will can be treated as invalid, while no will at all leaves the distribution to the fixed rules of the Intestate Succession Act 81 of 1987.

At death, the estate may face estate duty, capital gains tax on deemed disposals, executor’s remuneration, Master’s Office charges and ordinary debts. These liabilities must be addressed before the residue can be distributed. If no liquidity has been planned, an executor may have to sell property or investments to raise cash.

The Master of the High Court, rather than the family, deals with the formal appointment of the person who administers an intestate estate. A family member may be considered, but there is no guarantee that the person selected will be the person the deceased would have chosen. These problems are often invisible until death, when there is no longer an opportunity to amend the plan.

Mistake 1: Dying Without a Will

If a person dies intestate, the Intestate Succession Act 81 of 1987 determines who inherits. Its statutory order generally considers a surviving spouse, descendants, parents and siblings, followed by more distant relatives in the circumstances set out in the Act.

A surviving spouse does not automatically inherit the whole estate. An unmarried partner also does not acquire an automatic inheritance right simply because they shared a home or a long-term relationship. This can create severe financial insecurity for a partner who was dependent on the deceased.

Intestate administration may also take longer and involve more uncertainty than an estate administered under a valid will. The statutory distribution may be particularly unsuitable for blended families, business owners, people with non-marital partners, or anyone who wants to leave specific assets to specific beneficiaries.

Mistake 2: DIY Wills That Fail the Wills Act Formalities

A person may prepare their own will, but it still has to comply with the formalities in section 4(1) of the Wills Act 7 of 1953. The testator must sign at the end of the will in the presence of two or more competent witnesses. The witnesses must sign in the presence of the testator and in the presence of one another.

Small signing errors can have serious consequences. Examples include a witness leaving before the signing is complete, signing before the testator, or signing a page other than the page signed by the testator. Section 4(3) also restricts benefits to an attesting witness or that witness’s spouse, even though the will may not necessarily be invalid in its entirety.

Where a formality has not been met, the will may be challenged before the Master or a court. If it cannot be admitted, the estate may fall back on intestate succession rather than the deceased’s stated wishes.

Mistake 3: Not Updating the Will After Marriage

Marriage can change the effect of an existing will. Section 2A of the Wills Act 7 of 1953 provides for the revocation of an existing will on marriage unless it was expressly made in contemplation of that particular marriage.

Couples should therefore review their wills as soon as the marriage is registered. The need is especially important where either spouse has children from a previous relationship, owns a business, has a trust, or wants to preserve a particular asset for a particular beneficiary.

A new will should also be considered alongside the couple’s matrimonial property regime and their broader liquidity and tax planning. Burger Huyser Attorneys’ Wills & Estates practice includes will drafting, trusts and estate tax planning, allowing those documents to be considered together.

Mistake 4: Not Updating the Will After Divorce

Section 2B of the Wills Act 7 of 1953 affects a bequest to a former spouse after divorce or annulment. It does not necessarily restore the provisions that existed before the marriage or automatically redirect the former spouse’s inheritance to the children.

The result can be an unintended distribution to the residue under the later will, or intestate succession where there is no valid will. Divorce should therefore trigger an immediate review of beneficiaries, executors, trustees and guardians, not only a review of the matrimonial settlement.

Mistake 5: Not Appointing an Executor — or Appointing the Wrong One

An executor should be nominated in the will. If there is no valid nomination, the Master of the High Court appoints the executor or administrator in accordance with the applicable procedure.

The executor identifies and collects assets, deals with creditors, arranges valuations, prepares and lodges the liquidation and distribution account, addresses tax, and distributes the residue once the account has become final. The work requires time, organisation, financial literacy and the ability to manage family conflict.

A busy beneficiary may have a conflict of interest or may not have the capacity to administer a complicated estate. A professional executor, often an attorney, may cost more than an informal family appointment but can provide continuity and a single accountable point of contact.

Mistake 6: Ignoring Estate Duty and Capital Gains Tax on Death

Estate duty and capital gains tax are separate issues. Under the Estate Duty Act 45 of 1955, estate duty is calculated by determining the dutiable value after the applicable deductions and the section 4A abatement. SARS currently describes estate duty as 20% on the first R30 million of dutiable value and 25% on the portion above R30 million.

Capital gains tax may also arise because death is treated as a deemed disposal of certain assets. The family home, holiday property, investments, business interests and other assets can therefore affect the tax position. Retirement fund proceeds may also have consequences that should be considered as part of the overall plan, even where they do not pass through the estate in the same way as ordinary assets.

The gross value of an estate is not the same as its dutiable value. Allowable deductions, including qualifying liabilities and certain spousal or public-benefit bequests, affect the calculation. An attorney working with the relevant tax information can help identify a potential liability and plan for liquidity before death.

Mistake 7: Not Providing for Minor Children

A will should nominate a preferred guardian for minor children and explain how their inheritance is to be managed. If no suitable arrangement is made, the decision may involve the Master and, where necessary, the Children’s Court. The outcome may not reflect the parents’ wishes.

Minor children generally cannot receive and manage an inheritance directly. A testamentary trust created by the will can hold the inheritance, with named trustees managing the assets until the vesting age specified in the will. This can be useful even where the surviving parent is the natural guardian but would benefit from structured financial administration.

The will should identify backup guardians and trustees, set practical powers and duties, and address education, healthcare and maintenance. These details can reduce disputes and avoid forcing the family to make urgent decisions after death.

Mistake 8: Treating Joint Ownership as an Estate Plan

Joint ownership can affect how an asset passes on death, but it is not a substitute for a complete estate plan. Where an asset passes directly to a surviving joint owner under the relevant ownership arrangement, it may not pass under the will.

This may be intentional for a family home, but it can also result from a structure created for convenience. Joint ownership does not necessarily protect an asset from the deceased owner’s creditors, and it may create unexpected tax or succession consequences when the second owner dies.

In a blended family, joint ownership without a coordinated will can effectively prevent the deceased’s children from benefiting from that asset. Ownership records, the will, matrimonial property regime and any trust documents should be reviewed together.

Mistake 9: Not Considering a Trust Where One Would Help

A trust may be appropriate where assets need to be managed for minor children, a person with special needs, or beneficiaries who require protection from direct control. An inter vivos trust is created during life, while a testamentary trust is created by the will after death.

A trust can sometimes assist with asset protection and estate duty planning, particularly in relation to future growth. It also introduces ongoing administration, trustee duties, accounting costs and tax complexity. A trust should never be established merely because it sounds like a standard estate-planning solution.

A trust does not replace a will. The trust deed, will, ownership structure and beneficiary designations must work together. Poorly coordinated documents can produce the very tax and succession problems they were intended to prevent.

Mistake 10: Keeping Your Wishes a Secret from the Family

A valid will still creates practical uncertainty if nobody knows where the original is kept. The Master needs the original will for the deceased-estate process, and a copy alone may not be sufficient. If the original has been lost, a formal court application may be required before a copy can be accepted.

Beneficiaries do not need to receive every private detail during the testator’s lifetime, but the executor and at least one trusted family member should know where the original is held. Keeping it with the drafting attorney, in a bank safe-deposit box or in a secure home safe can remove avoidable confusion.

A short conversation about the broad structure of the plan can also set realistic expectations. It may reduce shock and conflict when the estate is reported.

Quick Reference: Avoiding the Ten Most Common Mistakes

Mistake	Practical fix
Dying without a will	Draft a will that reflects your family, assets and intended beneficiaries.
DIY will fails on a formality	Have the signing process checked and complete it with two competent witnesses present throughout.
Not updating after marriage	Review or replace the will after the marriage is registered.
Not updating after divorce	Review beneficiaries, executors, trustees and guardians as part of the divorce process.
Wrong executor appointed	Choose someone with time, organisation and financial literacy, or nominate a professional executor.
Estate duty shock	Obtain an estate duty estimate and plan a liquidity reserve.
Minor children unprotected	Include guardian provisions and a testamentary trust where appropriate.
Joint ownership treated as a full plan	Review ownership with the will, trust and matrimonial property regime.
No trust considered	Discuss the costs and benefits of a trust where protection or structured inheritance is needed.
Family unaware of the will	Tell the executor and a trusted person where the original will is stored.

When to Review a Will — Not Just at Death

Most wills should be reviewed every three to five years, and sooner after a major life event. A review is particularly important after:

• marriage, divorce or the death of a spouse;
• the birth or adoption of a child;
• the death or incapacity of a beneficiary, executor, trustee or guardian;
• the acquisition or sale of a home, business or substantial investment; or
• a change in the family business, property structure or trust arrangements.

A will review should not be isolated from the rest of the plan. The attorney should consider the will alongside trusts, ownership structures, beneficiary nominations, tax exposure, debt and the family’s need for liquidity. Burger Huyser Attorneys’ Wills & Estates service covers these connected concerns from its Linden head office and Gauteng branches.

Frequently Asked Questions

What happens if you die without a will in South Africa?

If you die intestate, the Intestate Succession Act 81 of 1987 sets a fixed order of inheritance involving a spouse, descendants, parents and siblings in the circumstances provided by the Act. The Master of the High Court appoints an administrator through the applicable process, and the estate may take longer to finalise than an estate administered under a valid will.

Does getting married automatically cancel an existing will in South Africa?

Section 2A of the Wills Act 7 of 1953 provides that marriage revokes an existing will unless the will was expressly made in contemplation of that particular marriage. A newly married person should arrange a will review promptly.

How much estate duty is payable in South Africa?

Estate duty is calculated on the dutiable value after allowable deductions and the section 4A abatement. SARS currently describes a rate of 20% on the first R30 million of dutiable value and 25% on the portion above R30 million. The gross estate value is not the same as the dutiable value.

Can I write my own will in South Africa?

You can draft your own will, but it must comply with the formalities in section 4(1) of the Wills Act 7 of 1953, including signing by the testator at the end in the presence of two competent witnesses who sign in the required presence. A failure can result in the will being rejected and intestate succession applying.

Do I need both a will and a trust?

Not necessarily. A properly drafted will is sufficient for many estates. A trust may help where assets must be managed for minor children or a person with special needs, or where structured asset protection and tax planning are appropriate. The trust and will should be drafted as coordinated documents.

Where should the original will be kept?

The original will should be kept in a safe and accessible place, such as with the drafting attorney, in a bank safe-deposit box or in a secure home safe. The executor and at least one trusted family member should know where it is. A copy alone may not be sufficient for the Master.

Estate planning mistakes are easier to correct before death than afterwards. Burger Huyser Attorneys’ Wills & Estates practice drafts wills, establishes trusts, advises on estate duty exposure and administers deceased estates from the Linden head office at 49 First Avenue, Linden, Randburg (011 888 0246) and across the firm’s Gauteng branches in Roodepoort, Sandton, Centurion, Pretoria (Menlyn), Bedfordview, Alberton and Midrand. The firm has a 4.8/5 average from 250+ Google reviews, Trustindex verified as “Top Rated Law Firm in South Africa”, and has received the Commercial Law Firm of the Year 2025 award at the 5 Star Lawyers Awards and Best Family Law Firm 2024 at the Lawyers Monthly Legal Awards. If your will has not been reviewed after marriage, divorce or the birth of a child, or you do not have a will, an initial consultation can identify the next steps.