Estate & Will Planning | Everything You Need To Know In SA Law

Estate and will planning in South Africa is governed by four statutes working together: the Wills Act 7 of 1953 (how a will must be made and what makes it valid), the Administration of Estates Act 66 of 1965 (how a deceased estate is reported, wound up, and distributed), the Intestate Succession Act 81 of 1987 (what happens when there is no will), and the Estate Duty Act 45 of 1955 (the tax that may be payable before assets reach beneficiaries). A typical plan covers drafting a will that meets the Wills Act execution formalities, deciding whether an antenuptial contract or a trust is appropriate, choosing the executor, and recording the liquid assets and property that will fall into the estate. When someone dies, the death must be reported to the Master of the High Court having jurisdiction over the deceased’s last domicile within 14 days from the date of death, after which the Master issues letters of executorship and supervises the winding-up process through a liquidation and distribution account. Planning ahead, rather than reacting to a death, determines whether beneficiaries receive what was intended or what the Intestate Succession Act prescribes.

What Estate Planning Is and Why It Matters in South Africa

Estate planning is the process of deciding, while you are still alive, how your assets and liabilities should be dealt with when you die, and how they should be positioned during your life to maximise what reaches your beneficiaries. It is not only a death-driven exercise: a complete plan also covers what happens to your assets and care if you become incapacitated, through advance directives, enduring powers of attorney, and the appointment of a curator for serious cases.

Without a plan, the Intestate Succession Act 81 of 1987 prescribes who inherits — and the result frequently does not match what the deceased would have wanted, especially in blended families or where a life partner is not a spouse in law. The Master’s Office process still applies to every deceased estate, but the absence of a will delays the appointment of an executor, can increase administrative costs, and leaves the distribution rules of the Intestate Succession Act to dictate the outcome.

For many South Africans, the most important reason to plan is also the most overlooked: a life partner who is not legally married is generally not an intestate heir. Couples who assume their partner will inherit by default often discover, too late, that the Intestate Succession Act does not recognise them. A valid will, drafted in time, fixes that position. The firm’s wills and estates practice works through this kind of correction regularly, and the same practical advice applies whether the client is based in Linden, Pretoria, or one of the other Gauteng branches.

The Legal Framework: Which Acts Govern Your Plan

Estate planning in South Africa sits on a slim stack of statutes. Each one governs a different part of the process, and they must be read together:

Statute	What it governs
Wills Act 7 of 1953	Formalities for executing, amending, and revoking a will; the rules against bequests to witnesses and their spouses; curators for estates where minors inherit.
Administration of Estates Act 66 of 1965	Reporting of a deceased estate to the Master, appointment of the executor, publication of notices, drawing of the liquidation and distribution account, and the Master’s powers of supervision.
Intestate Succession Act 81 of 1987	Default distribution where there is no valid will, applying a fixed hierarchy of spouse, descendants, ancestors, and collateral relatives.
Estate Duty Act 45 of 1955	Estate duty on the dutiable estate after allowable deductions, including the R3,5 million Section 4A rebate and the Section 4(q) deduction for bequests to a surviving spouse.
Trust Property Control Act 57 of 1988	Appointment and authority of trustees, where a trust is used as an estate-planning vehicle.
Children’s Act 38 of 2005	Guardianship and care of minor children, including the vesting of minors’ inheritance in the Master until a guardian or trust is appointed.

The Will: Formalities for a Valid Will in SA

A will is only valid if it meets the execution formalities in section 2(1) of the Wills Act: it must be signed by the testator at the foot, in the presence of two or more competent witnesses, who then sign in the testator’s presence and in the presence of each other. Each page of the will (other than the page on which the will ends and the witnesses sign) must also be signed by the testator and the witnesses in each other’s presence, per section 2(3) of the Wills Act.

The testator must be 16 or older, must be mentally capable at the time of execution, and must not be signing under undue influence. A will may be in any language, but it is usually drafted in English or Afrikaans, and it must identify the testator and the beneficiaries clearly enough that there is no doubt as to identity.

Witnesses generally cannot be beneficiaries under the will, and their spouses cannot be beneficiaries either (Wills Act section 2A). A bequest to a disqualified witness is void, but the will itself remains valid. A handwritten will is not a separate category in SA law: it is still subject to the same witness formalities, and there is no “holographic will” exception that bypasses witnesses.

What Goes into a Typical South African Will

A well-drafted will typically contains the following clauses, each of which performs a specific function in the administration of the estate:

Clause	Purpose
Identification of the testator	Full names, ID number, and address.
Revocation of prior wills	Explicit clause revoking all previous wills and codicils.
Beneficiaries	Who receives what, with sufficient specificity (fractions, specific assets, residuary).
Survivorship clause	Beneficiaries must survive the testator by a stated period (commonly 30 days) so the estate does not vest and immediately devolve twice on deaths in close succession.
Executor appointment	Naming a fit and proper person (an individual or fiduciary institution) to administer the estate; the Master must confirm the appointment.
Guardians for minor children	Appointment of a guardian and a substitute guardian in the event of both parents’ death, although guardianship of a child ultimately requires a separate application to the Children’s Court.
Specific bequests, residuary estate, and conditions	Clear residue handling for assets not otherwise disposed of.
Testamentary trust provision	Where any beneficiary is a minor or otherwise lacks capacity, the will commonly directs inheritance into a testamentary trust until the beneficiary reaches a stated age.

Intestate Succession: What Happens Without a Will

Where a person dies intestate, the Intestate Succession Act prescribes the distribution in a fixed order: spouse first, then descendants, then ancestors, then collateral relatives. A customary marriage and a civil marriage produce different outcomes, and a person married in community of property has a portion of the joint estate that does not devolve by will because it falls into the joint estate on death.

A life partner who is not legally married is generally not an intestate heir — one of the most common reasons couples discover too late that they need a will. The Master will appoint an administrator (in place of an executor) to wind up the estate, which can take materially longer than an executor appointment under a valid will, and the delay is rarely the family’s only source of cost.

The Master’s Office Process When Someone Dies

The death must be reported to the Master of the High Court having jurisdiction over the deceased’s last domicile within 14 days, in terms of section 4(1) of the Administration of Estates Act. The reporting pack includes the death report, the original will (if any), a certified ID copy of the deceased, the marriage certificate, ID copies of the heirs, and a completed inventory of assets.

The Master reviews the will for compliance with the Wills Act, calls for sureties where required from the nominated executor, and issues letters of executorship once satisfied. Within six months of appointment (extendable on application), the executor must lodge a liquidation and distribution account covering every asset and liability of the deceased; the Master inspects it, publishes it for objections, and either approves or directs amendment. After the account is approved, the executor is authorised to distribute to beneficiaries and lodge the final distribution receipts.

1. Report the death to the Master within 14 days of the date of death.
2. Master reviews the will and supporting documents and calls for sureties from the executor.
3. Master issues letters of executorship once satisfied.
4. Executor collects assets, settles debts, and prepares the liquidation and distribution account.
5. Liquidation and distribution account is lodged with the Master and advertised for inspection.
6. Master authorises the account, and the executor distributes to beneficiaries.

Estate Duty and the Tax Layer

Estate duty under the Estate Duty Act is calculated on the dutiable estate — the worldwide assets of the deceased less allowable deductions (including funeral expenses, debts, the cost of administering the estate, and bequests to a surviving spouse by way of the Section 4(q) deduction).

Layer	Detail
Section 4A primary rebate	R3,5 million applies to all estates.
Section 4(q) deduction	Bequests to a surviving spouse are deductible from the dutiable estate, which can substantially reduce or eliminate estate duty on first death.
Estate duty rate	20% on the first R30 million of dutiable value; 25% on the dutiable value above R30 million.
Capital gains tax on death	A Section 40(1) estate-attribution capital gains inclusion is added back into the dutiable estate on assets whose value has grown.
Donations within three years of death	Added back under Section 3(3)(c) of the Estate Duty Act — late-life estate-dumping can attract estate duty.

Verify the current schedule with SARS for the year of assessment, as both the rebate and the rate thresholds are subject to amendment. The Wills & Estates practice at Burger Huyser Attorneys coordinates the SARS estate duty return alongside the Master’s liquidation and distribution account as part of the standard estate administration process.

Estate Planning Tools Beyond the Will

A will is the spine of an estate plan, but several other instruments commonly form part of it:

• Antenuptial contract (ANC). Choosing the marriage regime (in or out of community of property, with or without accrual) materially changes what falls into the estate and how it devolves.
• Trust. An inter vivos trust (set up during lifetime) can hold assets outside the deceased estate, but is subject to the attribution rules in section 7 of the Income Tax Act and to recent National Treasury measures limiting its usefulness as a tax-only avoidance structure. A testamentary trust, set up by will, holds inheritance until minors reach a stipulated age.
• Enduring power of attorney. Authorises a chosen person to manage your financial affairs if you become mentally incapacitated, avoiding the need for a court-appointed curator.
• Living will (advance directive). Records your wishes about medical treatment if you cannot consent; not formally statutory in SA but recognised by the common law and South African Medical Association guidelines.
• Nominations. A pension fund or retirement-annuity nomination directs the trustees of the fund to pay a stated beneficiary on death, and falls outside the deceased estate, although now subject to Section 37C of the Pension Funds Act for the dependent-equitable-allocation rule.

What a Practical Estate Plan Looks Like

A practical plan includes a current will that complies with the Wills Act formalities and that names the executor; a review of the marriage regime and a decision on whether it still fits the family profile; an inventory of all assets and liabilities, including those that fall outside the deceased estate (pension proceeds, life cover, foreign assets); a decision on whether to use an inter vivos trust or rely on a testamentary trust and wait for the next will cycle; enduring powers of attorney for finances and a living will for medical decisions; a nominated beneficiary list for each policy and a gap check against the actual will (so that policies and the will are aligned and not in conflict); and a standing instruction to an attorney or fiduciary practitioner to review the plan after major life events (marriage, divorce, birth, death, change in residency).

Common Mistakes to Avoid

Several pitfalls recur in practice and are worth pre-empting:

• Believing life-insurance or pension nominations obviate the need for a will — they generally don’t, because other assets still devolve through the deceased estate.
• Naming a joint estate in a way that conflicts with the marriage regime (assets in joint name in community of property are not freely disposable by will).
• Failing to substitute the executor if the nominated executor predeceases or becomes unable to act.
• Not updating the will after a divorce, marriage, or change in relationship — the Wills Act treats some events (such as divorce) as not automatically revoking an ex-spouse’s bequest.
• Treating the cost of a proper will as optional — the Master’s Office fees plus executor fees on a small estate can be a material percentage of the estate value.

When to Update the Plan

A will should be reviewed after marriage, divorce, or the birth or adoption of a child; after a material change in assets (purchase of a property, sale of a business, inheritance received); after a change in tax law, including the estate duty schedule; and after a change in residency, because the Estate Duty Act applies to worldwide assets of a South African tax resident. A general review every three to five years is good practice, even where no specific life event has occurred.

Burger Huyser Attorneys’ wills and estates practice handles the full estate-planning arc — drafting and reviewing wills that comply with the Wills Act formalities, advising on marriage-regime and trust implications, lodging the Master of the High Court reporting pack within 14 days of death, drawing the liquidation and distribution account, and coordinating the SARS estate duty return. Estate-planning consultations are booked at the Linden head office (49 First Avenue, Linden, Randburg, 011 888 0246) and at the branch nearest the deceased’s last domicile, with the Pretoria (Menlyn) office at 012 471 5700 able to take instructions directly for estates falling under the Master in Pretoria. The firm is rated 4.8/5 across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”), and clients are encouraged to bring their existing will, marriage certificate (if relevant), an inventory of major assets, and any trusts or nominations they already have in place.

Frequently Asked Questions

Is a handwritten will valid in South Africa?

Yes, but only if it meets the Wills Act formalities. A will entirely in the testator’s handwriting must still be signed at the foot by the testator in the presence of two competent witnesses, who then sign in each other’s presence — there is no separate “holographic will” exception that bypasses witnesses in SA.

How long does it take to wind up a deceased estate in South Africa?

It depends on whether a will is in place, the size and complexity of the estate, and whether the Master has queries on the liquidation account. A typical estate takes between six months and a year to wind up from date of death, longer if there is contestation, missing documentation, or SARS tax delays.

What is the current estate duty threshold in South Africa?

The primary Section 4A rebate is R3,5 million. Bequests to a surviving spouse are deductible under Section 4(q). Estate duty above the rebate is taxed at 20% on the first R30 million of dutiable value and 25% thereafter. Verify the current figures with SARS for the year of assessment, as both the rebate and the rate thresholds are subject to amendment.

Can a life partner inherit if there is no will?

Generally no — the Intestate Succession Act does not recognise a life partner as an heir. Partners who are not legally married must have a will to ensure the surviving partner receives anything.

Does a trust avoid estate duty?

Not automatically. Inter vivos trusts in particular are subject to the attribution rules of section 7 of the Income Tax Act and to the anti-avoidance provisions of the Taxation Laws Amendment Act. A trust holds assets outside the deceased estate, but those assets are still subject to estate duty on certain events and the trustee remains responsible for tax compliance.

What happens to a child’s inheritance?

Inheritance that vests in a minor is held by the Master (through a guardian fund) until the minor reaches majority, or alternatively vests in a testamentary trust that the will has set up for that purpose. The Master will only release funds to a guardian if the guardian is appointed and security is in place.

How often should a will be reviewed?

After any major life event (marriage, divorce, birth, death of a beneficiary or executor, change in residency or asset profile) and as a general practice every three to five years. The Wills Act does not require periodic review, but life events do.