The Importance of Wills and Estate Planning | What You Need To Know

A valid South African will is a signed and witnessed document that disposes of a deceased person’s property in terms of the Administration of Estates Act 66 of 1965, and dying without one triggers intestate succession under the Intestate Succession Act 81 of 1987 — meaning the Master of the High Court, not the family, decides how the estate is distributed. Estate planning is broader than just the will itself: it covers liquidity for estate duty under the Estate Duty Act 45 of 1955, business succession, trusts (inter vivos and testamentary), and incapacity planning through an enduring power of attorney and a living will. South Africans who put off these decisions until a crisis rarely get to choose their heirs, their executor, or the guardian for their minor children.

Why a Will Matters in South Africa

A will is the only legally recognised way to choose who inherits your property and who administers your estate after your death. Without a will, the Intestate Succession Act 81 of 1987 imposes a fixed distribution order — spouse, descendants, parents, siblings, and remote relatives in a prescribed sequence — that almost never matches what the deceased would have wanted.

A will does three additional jobs that intestate succession cannot do for you:

• Appoint an executor of your choice, rather than leaving the Master of the High Court to appoint one in the order set out in the Administration of Estates Act.
• Nominate a guardian for minor children, so the court considering a guardianship application has your recorded preference in front of it.
• Record specific bequests — a family heirloom, a share in a business, a donation to charity — alongside the residue of the estate.

The Master’s office will not distribute an estate until a valid will is lodged (or an intestate sequence is formally confirmed), so the document’s existence — not just its contents — affects how quickly heirs are paid. At Burger Huyser Attorneys, the Wills & Estates practice runs from the firm’s Linden, Randburg head office, and the team regularly drafts wills that are paired with an enduring power of attorney so incapacity planning is covered in the same engagement.

What Happens When You Die Without a Will (Intestate Succession)

Dying intestate takes the decision-making away from your family and hands it to the Master. The process unfolds in three stages, each of which carries costs and delays that a valid will would have avoided.

1. Executor appointment by the Master. The Master of the High Court appoints an executor from the family in priority order — surviving spouse, child, parent, sibling — and failing a willing or suitable family member, a neutral executor is appointed, whose fees are then deducted from the estate.
2. Distribution under the Intestate Succession Act. The estate is distributed in fixed shares: a surviving spouse currently receives a child’s share or a fixed lump sum (R250,000, adjusted periodically) plus a share of the residue, depending on whether there are descendants and on the composition of the family.
3. Guardianship decided by a court. Minor children without a nominated guardian may be placed under interim care arrangements while a court considers the guardianship question separately — adding months of delay and, often, the cost of a curatorial appointment.

Common-law and same-sex life partners do not automatically inherit under intestate succession. A partner may receive nothing without a valid will, which is one of the most common unintended consequences of dying intestate in South Africa. This is the gap Burger Huyser Attorneys’ Wills & Estates practice closes for unmarried and life-partnered clients: a properly drafted will that records the partner as a beneficiary, paired with an executor appointment that the Master will recognise without dispute.

What Makes a Will Legally Valid in South Africa

Section 2 of the Wills Act 7 of 1953 sets the formalities. A will that fails any one of them can be declared void in whole or in part — and the failure usually only emerges after death, when it cannot be fixed.

Requirement	What the law requires
Age	The testator must be 16 or older.
Capacity	The testator must be mentally capable of appreciating the nature and effect of making a will at the time of signing.
Form	The will must be in writing.
Signature	Signed by the testator at the end of the document.
Witnesses	Two competent witnesses must sign in the testator’s presence and in the presence of each other.
Disqualification	A witness (and their spouse) generally cannot be a beneficiary; bequests to them may be void.

A bequest to a witness’s spouse, or to a person signing the will by proxy, still requires a valid executor’s certificate before distribution can take place. Most execution disputes in practice come down to a missing witness signature, a witness who is also a beneficiary, or ambiguous clauses that the Master will not interpret without a court order.

Estate Planning Beyond the Will: Liquidity, Tax, and Trusts

A will alone is not an estate plan. Estate planning combines the will with liquidity, tax, and structural decisions that determine how much of the estate actually reaches the heirs and how quickly.

Estate duty

Estate duty under the Estate Duty Act 45 of 1955 is levied at 20% on the dutiable value of an estate above the primary abatement (currently R3,500,000 per person), with a further R3,500,000 spousal deduction available on death of the first spouse. Estate duty is due within one year of the date of death, or 30 days from the date of assessment, whichever is later — and SARS charges interest at the prescribed rate on late payment.

Liquidity

Many estates are asset-rich but cash-poor. Without liquidity planning (life cover, retirement-fund nominations, cash reserves), the executor may be forced to sell productive assets — a family home, a business interest, a rental property — at short notice to settle estate duty and other liabilities. Nominating beneficiaries on retirement funds and life policies outside the estate is the single most common liquidity-planning step in South African estates.

Trusts

Inter vivos (living) trusts can ring-fence assets from the estate and reduce the dutiable estate at death; testamentary trusts (created by the will for minor or vulnerable beneficiaries) protect assets for heirs who cannot manage money themselves. Both have capital, tax, and administrative consequences that should be considered with an attorney before they are signed.

Capital gains tax on death

Capital gains tax (CGT) is triggered on deemed disposal of assets at market value on the date of death, and the executor must calculate and pay CGT from estate funds within prescribed timelines. CGT on death is not the same as estate duty, and the two taxes are calculated independently before either is paid.

Incapacity Planning: Enduring Power of Attorney and Living Wills

Estate planning covers more than death. Two documents operate during your lifetime and have nothing to do with the will or the deceased estate:

Document	What it does	When it operates
Enduring power of attorney	Authorises a chosen person to manage your financial affairs if you become mentally incapacitated.	During your lifetime, while you are alive but unable to act.
Living will (advance healthcare directive)	Records your wishes for medical treatment in end-of-life scenarios and guides doctors and family when you cannot speak for yourself.	During your lifetime, in specified medical circumstances.

Without an enduring power of attorney, a court-appointed curator usually takes over — a process that is slow, expensive, and conducted in public. Reviewing both documents after divorce, marriage, or a change in financial circumstances is part of ongoing estate planning, not a one-off exercise. Burger Huyser Attorneys drafts these documents alongside wills so incapacity and death are covered in a single file rather than three.

Choosing an Executor and Updating Your Will

An executor can be a family member, a professional (attorney or fiduciary), or a corporate executor. The role carries legal liability and a duty to account to the Master and to the heirs, so the choice matters more than most testators realise.

• Family executor. Low cost, but the executor becomes personally liable to the Master and may need to post a guarantee bond (underwritten by an insurer at the estate’s expense) before Letters of Executorship are issued — unless the bond is reduced or waived in the will.
• Professional or corporate executor. Higher cost, but brings technical expertise, continuity, and a track record of Master filings. Often the right choice where the estate includes a business, cross-border assets, or known family tension.

Events that should prompt a will review include marriage, divorce, the birth of a child, the death of a named beneficiary, the sale of a business, and emigration. A will destroyed with the intention of revoking it is treated as revoked; a copy of a destroyed will generally cannot be admitted, which is why storing the original with an attorney or in the Master’s safe-custody facility is recommended.

Common Misconceptions About Wills and Estate Planning

“I don’t have enough to need a will.” The Administration of Estates Act applies to every estate, however small, and the intestate succession rules apply regardless of the size of the estate.

“My spouse will automatically get everything.” The Intestate Succession Act’s fixed distribution means this is only true where there are no descendants and no other heirs in the prescribed order.

“A will is forever.” Marriage generally revokes a prior will (unless the will is expressly made in contemplation of that marriage), and changes in life circumstances should trigger updates.

“Estate planning is only for old people.” Accidents and illness affect all ages, and incapacity planning in particular is most useful for younger adults who have dependents and active financial lives.

Filing at the Master’s Office: Jurisdiction and Process

The Master’s office with jurisdiction over a deceased estate is the office in the province where the deceased was ordinarily resident at the date of death — not the place of birth, and not the location of specific assets. An estate comprising only Johannesburg and Pretoria assets still reports to the Gauteng Master of the High Court in Pretoria, or to the Johannesburg Master’s office for matters historically administered in Johannesburg, depending on the deceased’s residential address at death. The Master’s offices operate by appointment for many services; estate files cannot be lodged or distributed by post without prior engagement with the relevant Master’s office.

Where the Master requires a guarantee bond from an executor, the bond is underwritten by an insurer and the cost is borne by the estate, not the executor personally. Burger Huyser Attorneys handles wills, deceased estate administration, and estate planning through its Wills & Estates practice area, with branch support across Gauteng (Bedfordview, Centurion, Pretoria Menlyn) routing estate-related High Court applications through the Johannesburg and Pretoria seats of the Gauteng Division of the High Court. Clients with cross-province estates (for example, KwaZulu-Natal property alongside Gauteng-based assets) are routed through the appropriate Master’s office per the residential-jurisdiction rule.

Frequently Asked Questions

Who needs a will in South Africa?

Every adult with any property — a house, a car, a bank account, retirement funds, or personal possessions — should have a will. The Administration of Estates Act 66 of 1965 applies to every deceased estate, regardless of size, and dying intestate means the Intestate Succession Act 81 of 1987, not your preferences, decides who inherits.

Can I write my own will without an attorney?

A will you write yourself can be valid if it meets the formalities of the Wills Act 7 of 1953 — in writing, signed by you at the end, witnessed by two competent witnesses who sign in your presence, and you are mentally capable and over 16. Many people choose to use an attorney because errors in execution — a missing witness signature, an ambiguous clause, a disqualified witness-beneficiary — can render parts or all of the will void, and the consequences only emerge after death when they cannot be fixed.

What is estate duty and when is it payable?

Estate duty under the Estate Duty Act 45 of 1955 is levied at 20% on the dutiable value of a deceased estate above the primary abatement (currently R3,500,000), with a further R3,500,000 deduction available on death of the first spouse. The executor must calculate and pay estate duty before distributing the estate to heirs.

What does an executor actually do?

An executor lodges the death notice and will with the Master of the High Court, advertises creditors, draws up the liquidation and distribution account, settles debts (including estate duty and CGT), and distributes the residue to the heirs. The role carries personal legal liability to the Master and to the heirs for proper administration, which is why some testators appoint a professional executor instead of a family member.

How often should I update my will?

A will should be reviewed after any major life event — marriage, divorce, the birth of a child, the death of a named beneficiary, the sale or acquisition of a business, emigration, or a significant change in assets. Marriage generally revokes a prior will unless it was made in contemplation of that marriage, so updating after marriage is especially important.

Does a will cover my retirement fund and life insurance?

Not directly. Retirement funds and life policies pay to the nominees recorded with the fund or insurer, and those nominations override the will for those specific assets. Your estate planning should coordinate your will with these nominations to avoid assets falling into the estate unintentionally and triggering estate duty or intestate issues.