THE LAW OF SUCCESSION: UNDERSTANDING INHERITANCE AND ESTATE LAW

The law of succession in South Africa determines who inherits a deceased person’s estate, in what proportions, and under what procedure, and operates through two parallel regimes: intestate succession under the Intestate Succession Act 81 of 1987, which sets a fixed hierarchy of heirs when there is no valid will, and testate succession, governed by the Wills Act 7 of 1953, which gives effect to a valid will within strict formalities. The administrative process for winding up either type of estate is governed by the Administration of Estates Act 66 of 1965, which vests the Master of the High Court with oversight of executor appointments, estate liquidation, and distribution to heirs. Estate duty is separately governed by the Estate Duty Act 45 of 1955, with a current R3.5 million abatement that effectively exempts most smaller estates from duty.

This guide walks through what the law of succession actually covers, the statutes that make up the framework, the rules that apply when there is — or is not — a valid will, the Master-led process for winding up an estate, how estate duty works in 2026, and the common pitfalls that catch families out. It is written for South African readers who want a clear, current picture of how inheritance and estate administration actually work in this country.

What the Law of Succession Actually Covers

The law of succession is the body of law that determines who inherits a deceased person’s property, and how. It answers three questions in sequence: did the deceased leave a valid will; if so, what does that will say; and if not, who does the law step in and appoint as heirs?

Two routes lead into those questions. Intestate succession applies where there is no valid will — the Intestate Succession Act 81 of 1987 imposes a fixed hierarchy of heirs and prescribed shares. Testate succession applies where the deceased left a valid will that complies with the Wills Act 7 of 1953 — the will itself governs, subject to a small number of statutory overrides that protect surviving spouses and minor children.

A constitutional overlay shapes the modern position: the Constitution’s equality clause altered the older common-law and Black Administration Act regimes, which had previously produced gender-discriminatory inheritance outcomes in particular categories of estate. Those earlier distinctions no longer hold, and intestate succession now operates on a non-discriminatory footing for all categories of heir.

Geographically, succession law itself is national statute — there is no provincial version of the Intestate Succession Act or the Wills Act. But the administrative machinery is regional: estates are administered through the Master of the High Court in the jurisdiction where the deceased was ordinarily resident at the date of death, which in Gauteng typically means the Johannesburg seat or the Pretoria seat, depending on where the deceased lived.

This is where a multi-branch firm with coverage across Gauteng adds practical value: a Linden-based estate is reported to the Johannesburg Master’s office, while a Centurion-based estate is reported to the Pretoria Master’s office, and the firm coordinating that filing needs to know both pathways. Burger Huyser Attorneys’ wills and estates practice handles both Johannesburg- and Pretoria-jurisdiction estates across its branches.

The Statutory Framework at a Glance

South African succession law is built from a handful of interlocking statutes. Each one covers a specific part of the picture.

Statute	What It Governs
Intestate Succession Act 81 of 1987	Distribution rules when there is no valid will — sets the order of heirs (spouse, descendants, parents, siblings, more distant relatives) and their shares.
Wills Act 7 of 1953	Formalities for a valid will, revocation, amendments, and the consequences of invalid wills.
Administration of Estates Act 66 of 1965	Administrative process: appointment of executor, Master’s oversight, liquidation, and distribution.
Estate Duty Act 45 of 1955	Estate duty calculation, abatement, returns, and payment to SARS.
Trust Property Control Act 57 of 1988	Trustees’ powers and Master’s oversight where a trust forms part of the deceased’s estate planning.
Maintenance of Surviving Spouses Act 27 of 1990	Surviving spouse’s right to claim maintenance from the estate where the will fails to provide reasonably.
Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009	Reforms to customary-law succession, including confirmation of a customary-law spouse’s inheritance rights.

Read together, these statutes give a complete answer to the succession question. The Intestate Succession Act and the Wills Act determine who inherits. The Administration of Estates Act governs how the estate is wound up. The Estate Duty Act determines how much of the estate is taken by SARS before distribution. The Maintenance of Surviving Spouses Act and the Reform of Customary Law of Succession Act provide the statutory overrides that protect specific categories of claimant.

Intestate Succession: When There Is No Valid Will

Where the deceased left no valid will, the Intestate Succession Act 81 of 1987 imposes a fixed hierarchy of heirs. The Act sets out a strict order, and an heir in a higher class excludes those in lower classes entirely.

1. Surviving spouse
2. Descendants of the deceased
3. Parents of the deceased (where there is no spouse or descendants)
4. Siblings and their descendants (where there are no parents)
5. More distant relatives in a defined order
6. The state — if no heir exists, the estate escheats to the state

The shares change depending on which heirs are present. Where there is both a spouse and descendants, the spouse receives a fixed statutory share (currently R250,000) or a child’s share, whichever is greater, and the descendants take the balance in equal shares per stirpes. Where there is a spouse but no descendants, the spouse inherits the entire estate. Where there is no spouse, the descendants inherit equally per stirpes; failing descendants, the parents inherit; failing parents, the siblings inherit; and so on down the hierarchy until the estate either finds an heir or passes to the state.

Customary-Law Estates

Historically, customary-law estates were administered differently and the inheritance rights of a customary-law spouse were less clearly protected. The Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009 reformed that position and confirmed a customary-law spouse’s inheritance rights. Where the deceased was subject to a customary marriage, the Act now provides for the recognition of those marriages and the rights of spouses and children under customary law, bringing customary estates within the broader framework rather than leaving them outside it.

Testate Succession: When There Is a Valid Will

Where there is a valid will, the will itself governs. South African law follows the principle of freedom of testation — a testator may leave their estate to anyone they choose, with only a few statutory overrides in play.

Formalities for a Valid Will

A will is valid if it meets the Wills Act 7 of 1953 formalities: it must be in writing, signed by the testator, and that signature must be made in the presence of two competent witnesses who also sign the will. The Wills Act also recognises a small number of alternative forms for specific situations (for example, a soldier on active service), but the ordinary pathway for most South Africans is the two-witness requirement.

A will can be altered by a codicil or revoked by a later will, by destruction with the intention to revoke, or by a written revocation. A will that fails the formalities is generally invalid, in which case the estate falls back to intestate succession — which is often not what the testator wanted.

Statutory Overrides on Freedom of Testation

Freedom of testation is the default, but it is not absolute. Two overrides are most commonly invoked:

• Maintenance claim by a surviving spouse. The Maintenance of Surviving Spouses Act 27 of 1990 allows a surviving spouse to claim maintenance from the estate where the will leaves them inadequately provided for. The claim is brought against the estate, and the court can vary the distribution to make reasonable provision.
• Duty to provide for minor and dependent children. The court can enforce an obligation to provide for minor children even against an otherwise-valid will, on application by a guardian or interested party.

A practical point that catches testators out: a witness to a will who is also a beneficiary under that will generally forfeits their benefit, although the will itself typically remains valid. The safest course is to use independent witnesses with no interest in the estate.

The Administration Process: From Death to Final Distribution

Whether the estate is testate or intestate, the winding-up process is the same — it is governed by the Administration of Estates Act 66 of 1965. The Master of the High Court supervises every step.

1. Report the death to the Master of the High Court in the jurisdiction where the deceased was ordinarily resident at the date of death. A death notification by a family member or attending physician is the trigger.
2. Lodge the will (if any) with the Master — either for safe custody or to support the executor’s appointment.
3. Obtain letters of executorship or letters of authority. The Master appoints the executor named in the will (testate estate) or an heir or nominee (intestate estate). The executor is typically required to hold a Fidelity Fund certificate.
4. Compile a full inventory of the deceased’s assets and liabilities and prepare the liquidation and distribution account.
5. Advertise in the Government Gazette and a local newspaper to invite creditor claims against the estate. This typically opens a 30-day creditor period.
6. Settle debts and tax liabilities — estate duty, income tax up to date of death, and SARS clearance.
7. Lay the liquidation and distribution account open for inspection for 21 days.
8. Obtain the Master’s approval of the account and the final distribution to heirs.
9. Effect final transfer of immovable property (via a conveyancing attorney) and registration of moveable assets in the heirs’ names.

The statutory minimum periods are built in: a 30-day creditor period after advertisement, and a 21-day inspection period for the liquidation and distribution account. Master’s processing time is additional and varies by office, which is why the wind-up of an estate can take between six and twelve months in a straightforward case and considerably longer where complications arise.

The Master’s Role in Detail

The Master of the High Court supervises the administration of every deceased estate under the Administration of Estates Act 66 of 1965. The Master sits with regional offices across South Africa, with the office with jurisdiction determined by where the deceased was ordinarily resident at death, not where the assets are located. A deceased who lived in Linden at the time of death typically has their estate reported to the Johannesburg Master’s office; a deceased who lived in Centurion at the time of death typically reports to the Pretoria Master’s office.

The Master’s powers include appointing executors, requiring security from executors where appropriate, approving accounts, and intervening in cases of maladministration. The Master does not draft wills, give tax advice, or act as an attorney for heirs — those are the roles of an admitted attorney. An executor who needs help navigating the Master’s processes, or an heir who has a dispute about how the estate is being administered, is looking for an attorney, not the Master’s office.

Estate Duty in 2026: How It Now Works

Estate duty is governed by the Estate Duty Act 45 of 1955 and is administered by SARS. The executor is responsible for filing the return and paying any duty due.

Estate duty is calculated on the net value of the estate after permitted deductions — liabilities, bequests to qualifying public benefit organisations, and the spousal rollover. The current abatement is R3.5 million, which has been the figure since 1 March 2020. Estates below this threshold generally pay no estate duty, although the estate duty return must still be filed.

Estate duty is charged at 20% on the first R30 million of dutiable value and 25% on amounts above R30 million. A simple example illustrates how this works in practice: an estate with R15 million passing to a surviving spouse (qualifying for the spousal rollover) and R15 million passing to children would have R15 million less the R3.5 million abatement, leaving R11.5 million dutiable, with estate duty of R2.3 million at 20%.

The Spousal Rollover Concession

Bequests between spouses generally qualify for the rollover concession under section 4(q) of the Estate Duty Act — duty is deferred until the survivor’s death rather than charged on the first death. The rollover applies to parties married under the Marriage Act, the Civil Union Act 17 of 2006, and to spouses in customary marriages, which makes the spousal deduction one of the most powerful estate-planning tools available.

Common Pitfalls and How the Law Responds

Even where the law is clear, families run into avoidable problems. The most common ones are worth knowing in advance.

Pitfall	What the Law Does
Dying without a will	Triggers intestate succession under the Intestate Succession Act, which often produces an outcome the deceased would not have chosen — particularly in blended families, where there is an unmarried life partner, or where a family member is intentionally excluded.
Invalid wills (defective formalities)	A frequent cause of intestate fallback; a will drafted without proper witness signatures is generally invalid, and the estate then follows the statutory hierarchy rather than the testator’s wishes.
Unmarried life partners	Do not qualify as ‘spouse’ under the Intestate Succession Act and therefore do not inherit automatically if there is no will; a valid will naming the partner is the only reliable route to inheritance.
Foreign-situs assets	Are handled within the SA estate process for a deceased ordinarily resident in South Africa; a foreign-domiciled deceased with SA-situs assets has those assets administered by the local Master’s office, often with cross-border tax implications.
Maintenance claims	By surviving spouses and dependents can override an otherwise-valid will where the court finds the will fails to make reasonable provision.

The takeaway from each of these is the same: a properly drafted and properly witnessed will, drafted in advance with an admitted attorney, is the single most reliable way to avoid each of these outcomes. The Wills Act formalities are not complicated, but they are strict, and getting them wrong has the same effect as not having a will at all.

If you need help with a specific succession matter — whether drafting a will, settling a deceased estate through the Master’s office, or advising on a maintenance claim against an estate — Burger Huyser Attorneys’ wills and estates practice can help. The firm’s head office at 49 First Avenue, Linden, Randburg (011 888 0246) is the central intake point for Johannesburg-jurisdiction estates, with the Centurion branch (012 644 4990) handling Pretoria-jurisdiction instructions and additional coverage across Sandton, Roodepoort, Bedfordview, Alberton, Midrand, and Pretoria-Menlyn. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and fields this work across its Gauteng branches.

Frequently Asked Questions

What is the difference between intestate and testate succession in South Africa?

Testate succession applies when the deceased left a valid will that meets the Wills Act 7 of 1953 formalities — the will then governs who inherits, subject to a maintenance claim by a surviving spouse or a duty to provide for minor children. Intestate succession applies when there is no valid will (or the will fails); the Intestate Succession Act 81 of 1987 sets a fixed hierarchy of heirs — spouse, descendants, parents, siblings, more distant relatives, then the state — and prescribes the distribution shares.

Who inherits if there is no will in South Africa?

Under the Intestate Succession Act 81 of 1987, the order of inheritance is: surviving spouse, descendants, parents, siblings and their descendants, more distant relatives, and finally the state. The spouse and descendants typically share the estate, with the spouse receiving a fixed statutory share or a child’s share (whichever is greater) and the descendants taking the balance in equal shares per stirpes. If there is no spouse, descendants take the whole estate equally per stirpes; failing descendants, the parents inherit; failing parents, the siblings inherit; and so on down the hierarchy.

Does an unmarried life partner inherit automatically?

No — a cohabiting life partner who is not legally married (or in a civil union under the Civil Union Act 17 of 2006) does not qualify as a “spouse” under the Intestate Succession Act and therefore does not inherit automatically if there is no valid will. To ensure an unmarried partner inherits, the deceased must leave a valid will that names the partner as beneficiary; without that will, the partner has no automatic inheritance right, although they may have a claim against the estate for maintenance in defined circumstances.

What is the role of the Master of the High Court in a deceased estate?

The Master of the High Court, with regional offices across South Africa, supervises the administration of every deceased estate under the Administration of Estates Act 66 of 1965. The Master appoints the executor (in a testate estate) or an administrator (in an intestate estate), requires security from executors where appropriate, approves the liquidation and distribution account, and can intervene where there is maladministration. The Master does not draft wills, give tax advice, or act as an attorney for heirs — that role belongs to an admitted attorney.

When is estate duty payable in South Africa?

Estate duty is payable on the net dutiable value of a deceased estate above the current R3.5 million abatement, calculated under the Estate Duty Act 45 of 1955. The current rates are 20% on the first R30 million of dutiable value and 25% on amounts above R30 million. Bequests between spouses generally qualify for the rollover concession and are not immediately dutiable. The executor is responsible for filing the Estate Duty Return and paying any duty due to SARS within the prescribed period after the date of death.

How long does winding up a deceased estate take?

A straightforward estate with a valid will, a named executor, no disputes, and no significant assets requiring sale is generally wound up within six to twelve months, longer where complications arise. The statutory minimum periods include a 30-day creditor-notification period after advertisement, a 21-day inspection period for the liquidation and distribution account, and Master’s processing time, which can vary by office. Estates with business assets, foreign property, contested validity, or a maintenance claim typically take considerably longer — sometimes two to three years to finalise.