ESTATE PLANNING

Estate planning in South Africa is the process of arranging how your assets will be distributed, managed, and taxed on your death or incapacity — typically through a valid will under the Wills Act 7 of 1953, trust structures where appropriate, powers of attorney for interim incapacity, and (if you die without a will) intestate succession under the Intestate Succession Act 81 of 1987. Once a person dies, the estate must be reported to and administered through the Master of the High Court under the Administration of Estates Act 66 of 1965, with letters of executory authority issued before any inheritance can be paid out. Estate duty, where applicable, is levied under the Estate Duty Act 45 of 1955 with a primary abatement of R3.5 million per estate. Burger Huyser Attorneys’ Wills & Estates practice, run from the firm’s Linden, Randburg head office with branches across Gauteng, drafts wills, sets up and administers trusts, and administers deceased estates for individuals and families across the province.

What Estate Planning Actually Covers

Estate planning is broader than simply drafting a will. In South African practice it bundles five moving parts into a single plan, each of which affects what happens to your estate on death or during a period of incapacity:

• A valid will setting out who inherits, what they inherit, and who administers the estate.
• Trust structures for asset protection, minor beneficiaries, or business succession.
• Powers of attorney and advance directives for periods of incapacity, so a trusted person can manage your affairs if you cannot.
• Liquidity planning through life cover and retirement nominations, so heirs are not asset-rich but cash-poor.
• Tax planning around estate duty and capital gains triggered on death.

The SA Legal Framework Governing Estate Planning

Estate planning in South Africa is anchored in five pieces of legislation. Knowing which Act governs which moving part is the first step to reading any estate-planning document critically.

Statute	What it governs
Wills Act 7 of 1953	Formalities for a valid will, amendment, and revocation.
Administration of Estates Act 66 of 1965	Reporting, executor appointment, and administration of deceased estates through the Master of the High Court.
Intestate Succession Act 81 of 1987	Distribution of an estate where the deceased left no valid will.
Estate Duty Act 45 of 1955	Estate duty: rates, abatement, and exemptions (including the spousal rollover).
Trust Property Control Act 57 of 1988	Trustee appointment and trust registration with the Master.

Drafting a Will: What Makes It Valid

A South African will is governed by section 2 of the Wills Act 7 of 1953. The general rule is straightforward: the will must be in writing, signed by the testator at the end of the document, and signed by two competent witnesses in the presence of the testator and of each other. Beyond those core formalities, several practical pitfalls catch the unwary:

• Witnesses who are beneficiaries — a witness who is also a beneficiary under the will forfeits their bequest, although the rest of the will remains valid.
• Bequests to a trustee of a testamentary trust — these are permitted; the trustee may witness, provided the trust (not the witness personally) is the beneficiary.
• Amendment and revocation — a will can be amended by a codicil or revoked by a later will, by destruction, or by written revocation.
• Safe custody with the Master — a will can be deposited with the Master for safekeeping at no charge, which lets the Master locate the original after death.

When a Trust Makes Sense (and When It Doesn’t)

A trust is a flexible vehicle, but it is not a substitute for a basic will and it carries ongoing administrative duties. Used appropriately, it solves a specific problem; used inappropriately, it adds cost without benefit.

Useful for	Less useful for
Protecting assets for minor children	Simple estates below the estate-duty threshold
Providing for a beneficiary with special needs	Estates where cost and ongoing admin outweigh the tax saving
Business succession	Cases where no proper administration is contemplated
Ring-fencing growth for a defined beneficiary group	Last-minute planning with no time to administer properly

Trusts require proper administration — annual trustee resolutions, a separate bank account, and trustee records. A “shelf trust” without these steps can be set aside by the court on application, so formation is only the start.

What Happens When Someone Dies Without a Will

Dying intestate does not avoid the administration process — it simply removes the deceased’s ability to choose the beneficiaries or the executor. The Intestate Succession Act 81 of 1987 sets a fixed order of heirs: spouse, descendants, parents, siblings, then more distant relatives. The Master of the High Court appoints an executor from among the heirs in statutory order of preference. Within that hierarchy, a few common scenarios illustrate how the Act actually operates in practice:

• Spouse only (no descendants): the spouse is the sole heir.
• Descendants only (no spouse): the descendants inherit.
• Spouse and descendants: the spouse receives the greater of R250,000 or a child’s share, and the children share the balance.
• No relatives at all: the estate devolves to the state.

Special categories of “spouse” — civil marriages, customary marriages under the Recognition of Customary Marriages Act 120 of 1998, and same-sex marriages from 1 December 2006 under the Civil Union Act — are all recognised for the purposes of intestate succession.

The Role of the Master of the High Court

Every deceased estate with gross assets above R250,000 must be reported to the Master of the High Court within 14 days of the date of death. Reporting is done by any person controlling the deceased’s property or holding the will documents, by lodging a completed death notice at the Master’s or Magistrate’s Office. The Master then issues letters of executory authority to the appointed executor (or letters of administration where there is no will), and no inheritance can be paid out without the Master’s authorisation. For Gauteng clients, the relevant Master’s office is determined by the deceased’s last ordinary residence: the Johannesburg Master’s office at 66 Marshall Street, Marshalltown (serving the Johannesburg seat and surrounds), or the Pretoria Master’s office at 240 Pretorius Street, Pretoria (serving the Pretoria seat and surrounds). Estates below R250,000 may qualify for a simplified winding-up process under section 18(3) of the Administration of Estates Act 66 of 1965, bypassing full Master’s supervision.

Estate Duty and How to Minimise It

Estate duty in South Africa is administered by SARS under the Estate Duty Act 45 of 1955, with the Master of the High Court overseeing the supporting liquidation and distribution account. The current position, as set out by SARS, is summarised below.

Component	Current position
Primary abatement	R3.5 million per deceased estate
Spousal deduction	Assets passing to a surviving spouse are exempt and roll over to the spouse’s estate on later death
Rate (first R30m above abatement)	20%
Rate (above R30m above abatement)	25%
Included in estate value	Property, retirement fund proceeds (depending on nomination), life insurance (if not properly nominated outside the estate), and business assets
Payment deadline	Within 1 year of date of death, or 30 days from date of assessment if assessed within that year
Executor liability	Executor is personally liable if estate duty remains unpaid and estate assets are distributed

Lifetime gifting reduces the dutiable estate, but assets donated within three years of death are generally attributed back to the donor’s estate, with limited exceptions.

Choosing an Attorney for Estate Planning

The right firm for estate planning is one that handles the planning (will drafting, trust setup) and the administration (deceased estates) under one roof, so the same team can execute the plan when it is needed. A short checklist of what to confirm:

1. The firm reports estates to the correct Master’s office for the deceased’s last ordinary residence — Johannesburg or Pretoria, depending on the seat.
2. The firm explains cost transparency upfront: Master’s fees, statutory executor fees under the Administration of Estates Act tariff, and the firm’s own fee structure should all be quoted in plain language.
3. For trusts, the firm offers ongoing trust administration, not only formation — annual resolutions, separate bank accounts, and trustee records are not optional.
4. The firm is multi-specialist where it matters: an estate plan often needs to coordinate with an antenuptial contract, a divorce file, or a deceased estate administration. Burger Huyser Attorneys handles all three from its head office at 49 First Avenue, Linden, Randburg (011 888 0246, after-hours 061 516 6878), with intake across Gauteng at Centurion (012 644 4990), Sandton (011 253 3080), Pretoria (012 471 5700), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Alberton (011 439 3990), and Midrand (010 022 4082).

Estate Planning in Gauteng: Reporting to the Johannesburg and Pretoria Master’s Offices

For clients domiciled in Gauteng at the date of death, the deceased estate is reported to the Master’s office in the division where the deceased last ordinarily resided. For most Gauteng residents this is the Johannesburg Master’s office at 66 Marshall Street, Marshalltown (serving the Johannesburg seat and surrounds), or the Pretoria Master’s office at 240 Pretorius Street, Pretoria (serving the Pretoria seat and surrounds). Both offices issue letters of executory authority once the executor’s bond has been accepted and the liquidation and distribution account has been approved, and estates with gross assets under R250,000 may qualify for the simplified section 18(3) winding-up process. Burger Huyser Attorneys handles the full administration arc — first death-notification reporting, advertising for creditors, drawing the liquidation account, and final distribution — from its head office at 49 First Avenue, Linden, Randburg, with on-staff deceased estate administration (Lance Pearson) and notarial capacity (Natasha van Deventer, Amanda le Roux, Chanté Marais) aligned to the firm’s overall multi-specialist structure.

Frequently Asked Questions

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

No — you can draft your own will, provided it meets the formalities of the Wills Act 7 of 1953 (signed by the testator, witnessed by two competent witnesses who also sign, dated). In practice, most people use an attorney to ensure the will is unambiguous, properly witnessed, and drafted to avoid common pitfalls — witnesses who are beneficiaries, ambiguous bequests, and failure to provide for minor children.

How much does estate planning cost in South Africa?

A straightforward will typically runs from R1,500 to R3,000 with most attorneys; trust formation is more involved and depends on complexity. Burger Huyser quotes per file after a first consultation. Deceased estate administration is charged at the statutory tariff under the Administration of Estates Act plus an attorney fee.

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

Your estate is distributed under the Intestate Succession Act 81 of 1987, which sets a fixed order of heirs — spouse, descendants, parents, siblings, then more distant relatives. The Master of the High Court appoints an executor from among the heirs in statutory order; the estate still has to be reported and administered in the normal way.

Do I need to register my will with the Master?

No — registration (called “safe custody”) is optional, but it is free and allows the Master to locate the original after death. The original will still has to be lodged with the Master after death to be admitted to probate before inheritance can be paid out.

When should I review my will?

At minimum, after marriage, divorce, birth of a child, death of a beneficiary or executor, or any material change in assets. Most attorneys recommend a review every three to five years even without a triggering event, to keep pace with tax thresholds and family circumstances.

What is the current estate duty threshold in South Africa?

The primary abatement is R3.5 million per deceased estate. Estate duty is charged at 20% on the first R30 million of the dutiable value above the abatement and 25% above R30 million. Assets passing to a surviving spouse are exempt and rolled over to the spouse’s estate on their later death.

Burger Huyser Attorneys’ Wills & Estates practice drafts wills, sets up and administers trusts, and handles deceased estate administration from the firm’s head office at 49 First Avenue, Linden, Randburg (011 888 0246, after-hours 061 516 6878), with intake available at branches across Gauteng. Because the firm is multi-specialist, estate planning can be coordinated with the same team handling your antenuptial contract, divorce, or deceased estate work — one file, one point of contact. To book a first consultation, call the head office or your nearest branch — Centurion (012 644 4990), Sandton (011 253 3080), Pretoria (012 471 5700), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Alberton (011 439 3990), or Midrand (010 022 4082). Burger Huyser carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is recognised for both Family Law and Commercial Law expertise across the Gauteng market.