Estate Planning Checklist in South Africa: Documents, Decisions, and Reviews

An estate planning checklist in South Africa covers the legal instruments that survive incapacity or death — a will under the Wills Act 7 of 1953, an enduring power of attorney for financial affairs, and a living will for medical-treatment decisions — together with the records an executor needs to wind up an estate. Estates are administered through the Master of the High Court under the Administration of Estates Act 66 of 1965, and estate duty is levied at 20% on the dutiable amount above the R3.5 million primary abatement (section 4A of the Estate Duty Act 45 of 1955), with a full section 4(q) deduction for assets passing to a surviving spouse.

What an SA Estate Plan Actually Covers

An estate plan is not a single document. It is the combination of instruments, nominations, and records that does three jobs: sets out who inherits, who manages affairs during incapacity, and who winds up the estate after death. The framework is statutory:

• Wills Act 7 of 1953 — formalities and validity of a will.
• Administration of Estates Act 66 of 1965 — the Master’s process and executor duties.
• Estate Duty Act 45 of 1955 — estate duty, the primary abatement, and the spousal deduction.
• Intestate Succession Act 81 of 1987 — default rules if there is no will.
• Mental Health Care Act 17 of 2002 — advance directives and care decisions during incapacity.
• Trust Property Control Act 57 of 1988 — if any trusts form part of the plan.

The Three Core Documents at a Glance

Document	What it does	When it takes effect	SA-law basis
Will	Sets out who inherits and who winds up the estate	On death	Wills Act 7 of 1953
Enduring power of attorney	Authorises a nominated person to manage financial and property affairs	On mental incapacity (or earlier, if drafted that way)	Common-law mandate; durability built into the deed
Living will (advance directive)	Records medical-treatment wishes when the person cannot speak for themselves	On incapacity to consent	Mental Health Care Act 17 of 2002 (Chapter 9)

Each is a separate deed, signed and stored separately. The will operates at death; the enduring POA typically operates on incapacity during life; the living will operates during life in a medical context.

Building a Valid Will Under the Wills Act

A valid will under the Wills Act 7 of 1953 is a written document signed by the testator in the presence of two or more competent witnesses who are present at the same time and who also sign the will (section 2). Witnesses must be 14 years or older and must not be beneficiaries. A defect only surfaces after death, when it cannot be fixed cheaply. The practical steps are:

1. Decide on the beneficiaries — the will must identify each beneficiary and share clearly enough that there is no ambiguity after death.
2. Identify the executor (and an alternate) — the Master will confirm the appointment unless the executor is disqualified under section 3 of the Administration of Estates Act.
3. List specific bequests (the ring, the car, a fixed sum) before the residuary clause.
4. Provide for any maintenance obligations to a surviving spouse, minor children, or dependants — failure to do so can ground a claim under the Maintenance of Surviving Spouses Act 27 of 1990.
5. Sign in the presence of two competent witnesses who also sign every page.
6. Store the original in a safe place (the firm’s deeds vault, a bank’s safe custody, or the Master’s safe custody for an enrolled will) and tell the executor where it is.
7. Review on every trigger event and at least every three years.

Incapacity Planning: The Enduring Power of Attorney

Ordinary (non-enduring) powers of attorney lapse on the donor’s mental incapacity — the single most common estate-planning failure in South Africa. An enduring power of attorney is drafted to survive mental incapacity, so a spouse, child, or trusted relative can step in and manage finances and property without a court application for curatorship. Choose the agent carefully, consider separate agents for financial and healthcare decisions, and pair the financial POA with the living will. The Mental Health Care Act 17 of 2002 governs the alternative curatorship route through the High Court, which is slower, more expensive, and public.

Family-Law Context That Shapes the Plan

Estate planning is not family-law neutral. Four recurring issues change what the will can and cannot do:

• Marriage regime. In community of property, half of the joint estate accrues to the surviving spouse by operation of law — the will can only deal with the testator’s half. Out of community of property (with or without accrual) requires explicit bequests to the surviving spouse.
• Children from a prior relationship. Disinheriting them is possible, but dependants’ claims can be brought against the estate.
• Maintenance obligations. The Maintenance of Surviving Spouses Act 27 of 1990 lets a surviving spouse claim reasonable maintenance from the estate if the will fails to make reasonable provision.
• Cohabiting life partners. They are not treated as spouses under intestate succession and can be omitted by a will that fails to name them — a recurring estate dispute trigger.

Burger Huyser Attorneys treats estate planning as a family-law-aware exercise: a director from the firm’s Family Law department can sit in on the wills-and-estates consultation where family structure complicates the plan.

Beneficiary Nominations: Policies, Retirement Funds, and Trusts

Life policies and retirement funds (pension, provident, preservation, retirement annuity) do not form part of the deceased estate. They pay out directly to the nominated beneficiary on the fund’s own forms, outside the will and outside the Master’s process. Section 3 of the Pension Funds Act 24 of 1956 governs nominations on retirement fund death benefits, and the fund’s trustees have a discretion the will cannot override — a nomination is the starting point, not the last word. A nomination done years ago and never updated is one of the most common causes of estates that look correct but fail in practice.

Tax-Aware Planning: Estate Duty and Donations Tax

Estate duty in South Africa is levied at 20% on the dutiable amount above the primary abatement, with a higher rate of 25% applying above R30 million of the dutiable value. The mechanics that matter for planning:

• Primary abatement: R3.5 million per deceased estate for deaths on or after 1 March 2024 (section 4A of the Estate Duty Act 45 of 1955).
• Section 4(q) deduction: assets passing to a surviving spouse are fully deductible from the dutiable estate, so spousal bequests do not consume the abatement — the single most important planning point for married couples.
• Spousal portability is limited. The unused portion of the R3.5 million abatement is transferable to the surviving spouse only if the first death occurred on or after 1 March 2024 (the “rolled-up abatement”), and the total abatement on the second death is capped at R7 million.
• Donations tax (20% on cumulative donations above R100,000 per year) can erode estate-duty savings if not tracked — keep a donations register.
• Lifetime structuring (inter vivos trusts, donations, the donation of a primary residence with the section 4B exemption) usually beats waiting until death where estate duty exposure is real.

Records to Maintain and Where to Keep Them

An executor cannot wind up an estate they cannot find. The supporting records are as important as the documents themselves:

• A single, current asset-and-liability register (properties, vehicles, investments, policies, retirement funds, debts).
• Originals of the will, the enduring power of attorney, the living will, and any trust deeds — in a fireproof location the executor and POA agent can find.
• A letter of instruction to the executor: where the documents are, who the professionals are, what the testator wanted done.
• A list of digital assets and how to access them (email, online banking, crypto wallets).
• Names and contact details for the executor, alternate executor, POA agent, and professional advisors.

Filing After Death: The Master’s Office

The executor reports the estate to the Master of the High Court in the provincial division where the deceased was ordinarily resident at the date of death — Johannesburg or Pretoria for Gauteng estates, Cape Town for the Western Cape, Pietermaritzburg for KwaZulu-Natal, and so on. Section 9 of the Administration of Estates Act 66 of 1965 requires the death notice, the will, and the inventories to be lodged with the Master; section 18 provides for the appointment of an “Executor dative” where there is no will, or where the nominated executor cannot act; letters of executorship authorise the executor to deal with the estate’s assets. The Legal Practice Council (lpc.org.za) and SARS (sars.gov.za) remain the authoritative sources for current filing fees, prescribed forms, and any updates to the estate-duty abatement.

The Review Cycle: When to Update the Plan

A plan that is never reviewed drifts out of date. The triggers that should prompt an immediate update are:

• Every three years as a baseline.
• Marriage (especially if not already in community of property).
• Divorce.
• Birth of a child.
• Death of a beneficiary or executor.
• Acquisition of a major asset (house, business interest, retirement fund payout).
• Change in tax law or personal circumstances (a child turning 18, a beneficiary becoming insolvent).
• Diagnosis of a serious illness that raises the prospect of incapacity.

A review that produces no changes is itself a useful outcome. If the will has been amended by codicil more than once, it is usually better to restate it in a fresh will to avoid the chain-of-documents risk.

Frequently Asked Questions

Do I need a lawyer to write a will in South Africa?

No — a will that meets the Wills Act 7 of 1953 formalities is enforceable without one. Most people still use an attorney because drafting errors only surface after death, when they cannot be corrected cheaply.

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

The Intestate Succession Act 81 of 1987 sets out who inherits, depending on whether the deceased was married and what descendants and parents survive. The Master appoints an Executor dative under section 18 of the Administration of Estates Act — but the testator’s choices are not respected.

How much estate duty will my estate pay?

Estate duty is 20% on the dutiable amount above the R3.5 million primary abatement (section 4A of the Estate Duty Act 45 of 1955), with a higher rate of 25% on the dutiable value above R30 million. Section 4(q) removes from the dutiable estate any asset passing to a surviving spouse; the rolled-up abatement is capped at R7 million combined.

Can I disinherit my spouse or my children?

Spouses can be disinherited only in limited circumstances — the Maintenance of Surviving Spouses Act 27 of 1990 allows a claim for reasonable maintenance if the will fails to make reasonable provision. Children cannot be fully disinherited, but the will-maker can leave them less than an equal share if the estate is solvent.

How often should I update my will?

Every three years as a baseline, and immediately after any trigger event (marriage, divorce, birth, death, major asset, diagnosis). A will heavily amended by codicil is best restated in a fresh will.

What’s an enduring power of attorney, and do I need one?

An enduring POA authorises an agent to manage financial and property affairs through mental incapacity — unlike an ordinary POA, which lapses on incapacity. It is essential where there is any risk of future dementia, stroke, or other incapacity.

Plan your estate with a specialist. Burger Huyser Attorneys drafts wills, enduring powers of attorney, and living wills, and administers deceased estates from its head office in Linden, Randburg (49 First Avenue, 011 888 0246) and through branches across Gauteng. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and was named Best Woman-Owned Specialist Law Firm 2026 — Johannesburg by Acquisition International (Marni Huyser, Managing Director). To set up a first estate-planning conversation, contact the Linden head office on 011 888 0246 or visit the firm’s Wills & Estates service page to book an appointment.