Written by: Aamena Sayed
18 February 2025
Estate Administration and Valid Wills In South Africa
Discussing end-of-life planning with loved ones is never easy. The thought of drafting a will often feels overwhelming, leading many to postpone the conversation until it’s too late. However, as the well-known saying by Benjamin Franklin reminds us:
“Nothing is certain except death and taxes.”
Ensuring that your assets are distributed according to your wishes and that your loved ones are financially secure after your passing is one of the most important legal decisions you will make. However, many people underestimate the financial implications of estate administration. While drafting a will may seem straightforward, there are often hidden costs—from executor fees to legal costs, taxes, and property valuation fees—that can significantly reduce the inheritance intended for beneficiaries.
In this article, we explore what makes a will legally valid, the risks of so-called “free will drafting services,” and the often-overlooked costs associated with winding up a deceased estate.
What Makes A Will Valid In South Africa?
A valid will ensures that a person’s final wishes are legally recognised and must be honoured. It serves as a crucial legal document that allows an individual to determine how their estate and affairs should be handled after their passing.
Through a valid will, a person can:
- Appoint an executor to manage their estate.
- Nominate guardians for minor children.
- Specify how assets should be distributed among beneficiaries.
- Outline how debts and liabilities should be settled.
- Provide instructions on the management of trusts (if applicable).
- Detail funeral arrangements and other personal wishes.
Without a valid will, an estate will be administered according to the laws of intestate succession, which may not align with the deceased’s intentions.
What Are The Legal Requirements For A Valid Will?
The Wills Act, No. 7 of 1953, sets out the legal requirements that must be met for a will to be valid and enforceable in South Africa. These include:
1️. A will must be in writing – It can be either handwritten or typed; oral wills are not legally recognised.
- The testator (person making the will) must be at least 16 years old and of sound mind when the will is drafted.
- The will must be signed by the testator (or a legally appointed signatory, if necessary).
- The testator’s signature must appear on every page and at the end of the will’s text on the final page.
- Two competent witnesses must be present at the time of signing – These witnesses must:
- Be of sound mind.
- Sign the will themselves, preferably on every page, but at least on the last page.
- The will should be dated – This ensures that the most recent and applicable version is enforced.
What Happens If A Will Does Not Meet These Requirements?
If a will does not comply with these legal requirements, its validity can be challenged, and the estate may be administered under intestate succession laws. This could result in:
- The unintended distribution of assets to unintended heirs.
- Delays and legal disputes among family members.
- The appointment of an executor who was not the testator’s choice.
- The state decides on guardianship for minor children.
Does An Attorney Have To Draft Your Will?
Under South African law, specifically the Wills Act, No 7 of 1953, an attorney is not legally required to draft a will. Individuals have the right to draft their own will or seek assistance from various institutions, such as:
- Attorneys’ offices – Legal professionals ensure your will is correctly structured and compliant with the law.
- Banks – Some financial institutions offer drafting services, often with hidden administrative costs.
- Insurance providers – Many insurance companies assist clients with drafting wills, often linked to estate management services.
Can I Draft My Own Will?
While drafting your own will may seem like a cost-effective option, it comes with significant risks. Errors in legal wording, failure to meet statutory requirements or ambiguous instructions can lead to:
- A will being declared invalid, resulting in intestate succession laws applying.
- Disputes among heirs, leading to costly legal battles.
- Unintended asset distribution, where your estate is not divided as per your wishes.
- Delays in estate administration make it difficult for beneficiaries to access their inheritance.
Some Institutions Offer Free Will Drafting. Is It Really Free?
Recently, the “free will drafting” phenomenon offered by financial institutions and insurance providers has gained significant popularity. At first glance, these services appear to be a cost-effective solution, allowing individuals to have their wills drafted without any immediate costs.
However, many of these “free” estate planning services fail to clearly communicate the hidden costs embedded in the fine print—costs that can significantly impact the inheritance received by beneficiaries. These fees, which often only become apparent after death, can result in unintended financial burdens on your estate and loved ones. They include:
- Executor fees are charged, as the institution automatically becomes the executor of your will.
- Monthly will management
- Safekeeping fees.
- Property valuation costs.
- Conveyance attorney fees.
- Potential legal dispute fees
What Does Estate Administration Mean For Your Beneficiaries’ Inheritance?
When planning your estate, it is crucial to be aware of the hidden costs that often go unnoticed in the fine print of estate administration. These costs can significantly reduce the inheritance your beneficiaries receive. Understanding these expenses ensures you can plan effectively and make informed decisions about your will and estate. Some of these hidden costs include:
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Executor Fees – The Cost of Administering Your Estate
An executor is the person or institution appointed in your will to manage your estate according to your wishes. By law, the executor is entitled to charge fees for administering the estate. These fees are capped at:
- 3.5% (plus VAT) of the total value of your estate’s assets.
- 6% on any income generated by the estate after the deceased’s passing.
For example, if your estate is worth R5 million, executor fees alone could amount to R201,250 (including VAT), significantly reducing the inheritance left to your beneficiaries.
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Conveyancing Attorney Fees – Transferring Property Ownership
If your estate includes immovable property, it must be transferred from your name to the nominated beneficiaries. The legal process of transferring ownership involves conveyancing attorney fees, which are charged to the estate. These costs can be substantial, depending on the value of the property.
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Legal Fees for Disputes – Contesting a Will
If your will is contested due to ambiguity, contradictions, or legal invalidity, the estate could face significant litigation costs. Court proceedings can be lengthy and expensive, further reducing the assets available for distribution to your heirs.
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Trust Administration Fees – Managing a Testamentary Trust
If your will establishes a testamentary trust for minor children or dependents, ongoing trust administration fees will apply. These fees cover the management of trust assets and are deducted from the estate, impacting the final amount available to beneficiaries.
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Capital Gains Tax – Tax on Asset Appreciation
Capital Gains Tax (CGT) applies when an estate disposes of assets that have increased in value. This tax is part of income tax and is calculated based on the gain made when an asset is sold or transferred. Depending on the assets in your estate, CGT may be a significant cost that must be settled before any distributions to beneficiaries.
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Estate Duty – Tax on High-Value Estates
Estate duty is a tax payable to SARS on the total value of your estate:
- The first R3.5 million of the estate is tax-free.
- For estates up to R30 million, 20% of estate duty is payable.
- For estates exceeding R30 million, 25% estate duty applies.
For example, if your estate is worth R40 million, estate duty could amount to R9.5 million, significantly affecting the inheritance of your beneficiaries.
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Will Storage Fees – The Cost of Keeping Your Will Safe
Some institutions, such as banks and financial service providers, offer free will drafting services but charge a monthly or annual fee for storing your will. These fees add up over time and may not always be clearly communicated upfront.
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Property Valuation Fees – Assessing the Value of Estate Assets
If your estate includes real estate assets, professional property valuations may be required to determine their market value for resale or distribution among beneficiaries. These valuations incur additional costs that are deducted from the estate.
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Additional Costs – Unexpected Estate Administration Expenses
Beyond the primary costs, estate administration includes various ancillary expenses, such as:
- Opening a late estate bank account.
- Master’s office fees.
- Advertising costs (publishing estate notices in the Government Gazette and local newspapers).
- Estate agent fees for property sales.
- Municipal rates and taxes on immovable property.
- Bond cancellation fees.
- Travel costs, attorney fees, and bank charges
The costs associated with wills and deceased estate administration often contain hidden expenses that can significantly reduce the inheritance meant for your loved ones. With only 15% of South Africans passing away with a valid will in place, estate planning is not just important—it is essential. Poor financial planning or a lack of awareness regarding the hidden costs of estate administration can unintentionally disadvantage the very people you intended to provide for after your passing.
Deal With Experienced Will Drafting Lawyers
Your will is one of the most important legal documents you will ever sign, as it determines how your estate will be managed and distributed after your passing. Seeking legal assistance ensures that:
✔ Your will is legally sound and enforceable.
✔ Your final wishes are clearly and accurately reflected.
✔ Your estate is structured efficiently to minimise costs and tax burdens.
✔ Your loved ones are protected from unnecessary legal complications.
At Burger Huyser Attorneys, we provide expert estate planning services to ensure that your will is professionally drafted, compliant with the law, and tailored to your unique needs.
Don’t leave your legacy to chance. Contact Burger Huyser Attorneys today for expert will drafting and estate planning services.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
