Testamentary Trusts Lawyers in Roodepoort

A testamentary trust is a trust created by clause in a will, which comes into effect only on the death of the testator and is administered by trustees authorised by the Master of the High Court under the Trust Property Control Act 57 of 1988. Burger Huyser Attorneys’ Wills & Estates practice drafts testamentary trust clauses into wills for Roodepoort clients, advises on trustee selection and trust funding, and — once the testator dies — administers the trust through the Master of the High Court’s Johannesburg office, opening the trust bank account and reporting to the Master as required. Testamentary trusts are most commonly used to provide for minor children, beneficiaries who cannot manage their own finances, or blended-family situations where the surviving spouse needs income but the capital is reserved for the children.

What a Testamentary Trust Is (and What It Isn’t)

A testamentary trust is a trust created by clause in a valid will, that activates only on the death of the testator. The will itself — not a separate trust deed — sets out the trust terms, although a separate trust deed is commonly drafted alongside the will to give the trustees operational detail once they take office. Until the testator dies, the trust has no legal existence; the assets that will eventually fund it remain part of the testator’s personal estate.

The trust assets form part of the deceased estate until the executor transfers them into the trust in terms of the will. Once transferred, the trust property is held by the trustees in a separate trust name, not by the executor and not by the beneficiaries. Two Acts govern the structure: the Trust Property Control Act 57 of 1988 (which regulates trusts generally, including the requirement that trustees be authorised by the Master before they act), and the Administration of Estates Act 66 of 1965 (which governs the winding-up of the deceased estate that funds the trust).

Testamentary trusts are most often used to:

• provide for minor children until they reach an age the testator considers responsible;
• protect assets for beneficiaries who cannot manage their own finances, whether through disability, addiction or inexperience;
• preserve capital for one generation while paying income to another (an “income-only” or “capital-preservation” trust); and
• protect assets for a surviving spouse in a second marriage, while reserving the remainder of the capital for the children of the first marriage.

Testamentary Trust vs Living (Inter Vivos) Trust

The single biggest practical difference is timing: a testamentary trust exists only after the testator’s death, while a living (inter vivos) trust is created and funded during the founder’s lifetime. That difference drives most of the downstream consequences.

Feature	Testamentary Trust	Living (Inter Vivos) Trust
When created	Drafted into a will; takes effect on death of the testator.	Created and signed during the founder’s lifetime.
Funding source	Deceased estate, after Letters of Authority have been issued.	Assets transferred into the trust during the founder’s lifetime.
Master of the High Court involvement	Authorisation of trustees, ongoing reporting required, plus estate winding-up phase.	Trustee authorisation still required under section 6 of the Trust Property Control Act 57 of 1988, but no estate wind-up phase.
Section 7C of the Income Tax Act	Not triggered — the transfer happens at death, not by donation during life.	Triggered when assets are donated to a trust with a beneficiary who is a minor child of the founder — annual R100 000 deemed accrual per child since 2017.
Cost timing	Drafting cost is modest and bundled with the will; funding and administration costs arise only after death.	Funded and administered during the founder’s lifetime, with ongoing annual administration costs.
Typical use case	Protecting heirs after death, minor beneficiaries, blended families, second marriages.	Asset protection during lifetime, business succession, immediate donation-tax planning.

What the Testamentary Trust Provisions in the Will Must Cover

The trust clauses are read by the Master, by the trustees they appoint, and (in any later dispute) by the beneficiaries and their attorneys. They must therefore answer every operational question the will is silent on. The Trust Property Control Act 57 of 1988 further requires that the trust has proper subject matter (the trust property), proper trustees, and a defined beneficiary relationship — three building blocks the Master will look for.

At a minimum, the will should set out:

• Identification of the trust: a name (even a descriptive one) that distinguishes this trust from any other trust the testator might create.
• Identification of the trustees: initial appointees, plus a clear succession rule if an initial trustee cannot or will not act, dies before the testator, or is removed by the Master.
• Identification of the beneficiaries: by name where possible, or by class (for example, “my grandchildren living at the date of my death”), with the class defined as closed or extended as the testator chooses.
• The trust property: which estate assets fund the trust — a specific legacy (a named asset), a percentage of the residue, or a defined class of assets.
• Distribution terms: when amounts may be paid out, on what triggers (age milestones, marriage, tertiary education, demonstrable need), and how much may be paid at each trigger.
• Trustee powers and limits: what trustees may do with the trust capital and income, and what they cannot do without further court or Master approval.
• Trust period: whether the trust is perpetual (allowed in South African law for testamentary trusts since the Trust Property Control Act reforms) or capped to a defined event or age, and the events that dissolve the trust and direct the remaining capital.

Who Can Be Appointed as Trustee

Section 6 of the Trust Property Control Act 57 of 1988 requires that the Master authorise each trustee before they can act — appointment in the will is necessary but not sufficient. The nominated trustee applies to the Master, who issues letters of authority once satisfied that the appointment is in order.

The Act contemplates at least three trustees, or fewer trustees where written motivation is accepted by the Master. Trustees can be family members, friends, professionals (attorneys, accountants, independent fiduciaries), or an independent trust company. The Master may refuse to authorise a proposed trustee who is insolvent, has been removed from a prior trust, or is otherwise unfit, so the choice of trustee should be tested with the Master in mind, not just on paper.

Two practical drafting points come up repeatedly:

• Impartiality. A trustee must be capable of acting impartially. Naming one beneficiary as sole trustee against another beneficiary’s interest is a common drafting pitfall the Master will query, and is a frequent source of later family dispute.
• Trustees who are also beneficiaries. The Act permits this, but conflicts must be managed. Many testators appoint an independent professional trustee alongside family trustees to break ties and to bring fiduciary experience to the administration.

Funding the Testamentary Trust

The trust is funded from the deceased estate after the executor has liquidated sufficient assets to pay debts, taxes and other legacies. Cash legacies, fixed property, investments, shares in a private company, and policy proceeds can all be settled into a testamentary trust — the will is the source of the funding instruction, but it is the executor who actually transfers the assets once the estate can afford to do so.

Liquidity is often the practical bottleneck. If the testator’s estate is heavy on property and light on cash, the executor may need to sell or borrow before settling the trust, which can delay the first distribution to beneficiaries. The will should therefore give the executor enough flexibility to fund the trust efficiently — for example, by not specifying that only one specific asset (a particular property, for instance) can settle the trust, when selling that asset may be commercially difficult or slow.

Administration After Death: The Master’s Role

Once the testator dies, the Master of the High Court, Johannesburg — the seat serving the West Rand and Roodepoort area — issues Letters of Authority authorising the executor named in the will to wind up the deceased estate. The nominated trustees of the testamentary trust then separately apply to the Master for letters of authorisation to act as trustees under section 6 of the Trust Property Control Act 57 of 1988. Both processes run through the same Johannesburg office.

Once authorised, the trustees open a trust bank account in the trust’s name; the executor settles the trust funding by transferring the agreed assets into that account; and the trustees begin administering the trust in terms of the will. Trustees have ongoing reporting duties to the Master — including annual accounts where the trust is not exempt, and notification on any trustee change — and they owe fiduciary duties to the beneficiaries at common law and under section 9 of the Act: act in the beneficiaries’ interests, keep proper records, and do not profit from the trust.

When a Testamentary Trust Should Be Reviewed or Updated

A will — and the testamentary trust clauses inside it — should be revisited every three to five years, and after any major life event. The most common triggers are:

• Marriage, divorce, or a new partner of the testator — beneficiaries and trustees may need to change.
• Birth of additional children or grandchildren — class definitions may need to extend.
• Death or incapacity of a named trustee — the successor-trustee clause should be tested.
• Change in tax law — particularly section 7C of the Income Tax Act (the annual R100 000 deemed accrual on donations to trusts with minor child beneficiaries, in force since 2017), which affects how a parallel living trust is structured but does not generally affect testamentary trusts because the transfer happens at death, not during life.
• Change in family circumstances of a beneficiary — divorce, a special-needs diagnosis, business failure, emigration.

What to Look for When Choosing a Testamentary Trust Lawyer in Roodepoort

• Wills & Estates experience specifically. Drafting a testamentary trust is not the same as drafting a basic will; the deed clauses need to anticipate Master queries, family disputes, and tax consequences.
• End-to-end capability. The firm should handle both the lifetime drafting phase and the post-death administration through the Master, so the testator’s family is not left coordinating between two firms after death.
• Familiarity with the Johannesburg Master. Filings for Roodepoort estates run through the Master of the High Court’s Johannesburg office, and the firm’s working knowledge of current Master practice speeds up authorisation.
• Trustee and beneficiary design advice. A good drafter stress-tests trustee independence, beneficiary class definitions, and capital-versus-income splits before the will is signed, not after.
• Transparent cost conversation. Fees for drafting a testamentary trust are quoted separately from the basic will fee, and administration fees are quoted after the testator’s death when the estate complexity is known.

Burger Huyser Attorneys’ Roodepoort branch, run by Director Nadine Roesch-Prinsloo, handles both phases — drafting the testamentary trust clauses as part of the will during the testator’s lifetime, and once the testator dies, applying for Letters of Authority, attending to the trustee-authorisation process through the Master, opening the trust bank account, and administering the trust assets.

Frequently Asked Questions

What is a testamentary trust?

A testamentary trust is a trust created by clause in a will, that takes effect only on the death of the testator. The trust property is administered by trustees appointed and authorised under the Trust Property Control Act 57 of 1988, and is distributed to nominated beneficiaries according to the terms set out in the will.

How is a testamentary trust different from a living trust?

A testamentary trust is created by will and only takes effect on the death of the testator; a living (inter vivos) trust is created and funded during the founder’s lifetime. Testamentary trusts do not trigger section 7C of the Income Tax Act (the annual deemed accrual on donations to trusts with minor child beneficiaries, in force since 2017), because the transfer happens at death, not during life.

Who can serve as trustee of a testamentary trust?

Any competent person can be nominated, but each trustee must be authorised by the Master of the High Court before they can act, under section 6 of the Trust Property Control Act 57 of 1988. The Master generally expects at least three trustees, or fewer with written motivation. Trustees can be family members, professionals, or independent trust companies — what matters is the trustee’s ability to act impartially in the beneficiaries’ interests.

Does Burger Huyser draft the testamentary trust, and also administer it after death?

Yes. The firm handles both phases — drafting the testamentary trust clauses as part of the will during the testator’s lifetime, and once the testator dies, applying for Letters of Authority, attending to the trustee-authorisation process through the Master, opening the trust bank account, and administering the trust assets.

How much does it cost to set up a testamentary trust in a will?

Costs depend on the complexity of the trust clauses — the number of beneficiaries, the distribution conditions, whether independent professional trustees are named, and the trust period. Burger Huyser Attorneys quotes on a per-file basis after an initial consultation at the Roodepoort branch (011 668 0030); the firm gives a transparent cost conversation before engagement rather than a loose pre-engagement estimate.

Where is the Master of the High Court that handles Roodepoort deceased estates?

The Master of the High Court, Johannesburg — at the South Gauteng High Court building in Johannesburg — handles deceased estate and trust filings for the West Rand, including Roodepoort. Burger Huyser’s Roodepoort branch files and administers through the Johannesburg Master on clients’ behalf.

If you are drafting a will that needs to provide for minor children, a vulnerable beneficiary, or a second marriage — and want a Roodepoort-based attorney who can both draft the testamentary trust clauses and administer the trust through the Master’s office when the time comes — contact Burger Huyser Attorneys’ Roodepoort branch on 011 668 0030 (Mobile 061 516 0091) or visit the office at 16 Galena Avenue, Helderkruin, Roodepoort, 1724. The firm handles testamentary trusts through its Wills & Estates practice, with files run by the Roodepoort branch and the Master of the High Court filings handled in Johannesburg. Bring (for the first consultation during your lifetime) a list of intended beneficiaries, an idea of the trust property, and any existing will to the meeting — the firm will quote on a per-file basis after that conversation. Burger Huyser carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and fields Wills & Estates work across its Gauteng branches.