The Ultimate Legal Will and Estate Planning Checklist

A valid will in South Africa must be in writing, signed by the testator at the end of the will in the presence of two competent witnesses who also sign, and the testator must be at least 16 years old and of “sound disposing mind” — failing these formalities under the Wills Act 7 of 1953 renders the will void, after which the estate devolves under the Intestate Succession Act 81 of 1987. Estate planning goes beyond the will itself: it includes a comprehensive review of the testator’s assets, nominations of beneficiaries, liquidity planning to fund estate duty and other costs, and consideration of trusts, donations tax, and capital gains tax at death under section 9HA of the Income Tax Act. The Master of the High Court in the region where the deceased was ordinarily resident appoints the executor under the Administration of Estates Act 66 of 1965 and authorises the execution process.

The Two Tiers: The Will Itself, and the Plan Around It

A will is a single document; estate planning is the broader arrangement that makes that document land in a way that protects the family, minimises tax, and avoids conflict. The will only works if it is validly executed and fits within the wider plan — covering liquidity, tax, succession of businesses, and guardianship of minor children. Treating the will as a stand-alone task is the single most common reason families end up in the Master’s office arguing over assets that should never have been in dispute.

The Will Itself: What It Must Contain

A South African will should cover the following elements to function as a complete estate planning instrument:

Clause	Purpose
Testator identification	Full names and ID number of the person making the will
Revocation of previous wills	Explicitly revokes all earlier wills (a marriage automatically revokes an existing will unless the will was executed in anticipation of that marriage)
Appointment of executor	Names a person, attorney, or corporate trust to administer the estate
Specific bequests	Items of value left to named beneficiaries
Residuary clause	Distributes anything not otherwise dealt with
Residuary beneficiary	The person or institution that inherits whatever is left after specific bequests, debts, taxes, and costs
Guardian for minor children	Nomination under section 18 of the Children’s Act 38 of 2005
Substitution clauses	Cover simultaneous death scenarios where a beneficiary predeceases the testator
Revival of previous wills	Used by couples with mirror wills so that if one will is revoked, the other does not accidentally lapse

The Formalities That Make a Will Valid (Wills Act 7 of 1953)

Under the Wills Act 7 of 1953, a will is valid only if it meets every one of the following execution requirements:

• The will must be in writing — typed, handwritten, or a combination of both.
• It must be signed by the testator at the end of the will, not next to the body text.
• Two competent witnesses must be present at the same time, both must witness the testator signing, and both must sign the will in the testator’s presence.
• Witnesses cannot be beneficiaries under the will — a witness who is named as a beneficiary forfeits that benefit unless the will is re-executed correctly.
• The testator must be 16 or older and of “sound disposing mind” — that is, legally capable of understanding the nature and effect of making a will, the extent of their estate, and the claims of those who might expect to benefit.

Burger Huyser Attorneys’ Wills & Estates practice, headed by Deceased Estate Administrator Lance Pearson, drafts and reviews wills to ensure every formality is in place before the document is signed.

The Estate Inventory: Catalogue Every Asset Before Drafting

The estate inventory is the working list of everything the testator owns — and the starting point for any will that is intended to distribute those assets correctly. The categories to capture are:

Asset class	Examples to capture
Immovable property	Every property owned, including joint or undivided shares
Movable property	Vehicles, household contents of meaningful value, jewellery, collections
Financial assets	Bank accounts, investment accounts, unit trusts, shares
Retirement and life insurance	Pension, provident, retirement annuity funds, and life policies with named beneficiaries (these typically fall outside the estate but must be recorded so the executor knows they exist)
Business interests	Companies, close corporations, partnerships, and the buy-and-sell or shareholders’ agreements that govern succession
Digital assets	Email accounts, social media, cloud storage, cryptocurrency holdings, recurring subscriptions
Loans receivable	Money the testator has lent to others, including informal loans to family members
Foreign assets	Immovable property abroad, offshore accounts, foreign pensions

Nominations and Beneficiary Declarations: The Layer That Often Beats the Will

For retirement funds and life policies, the nomination frequently overrides the will:

• Section 37C of the Pension Funds Act 24 of 1956 allows a fund member to nominate beneficiaries; the trustees must distribute in line with the nomination, subject to their discretion.
• Section 2 of the Insurance Act 18 of 2017 governs the nominee for a life insurance policy; the insurer pays the nominated beneficiary directly, bypassing the estate.

Failing to keep these nominations aligned with the will is one of the most common causes of unintended outcomes — the nomination prevails for that asset, even if the will says otherwise.

The Liquidity Plan: Cash on Hand When the Estate Settles

Cash requirements at death include estate duty, executor’s fees, Master’s fees, transfer duty (if immovable property changes hands), capital gains tax on deemed disposal, and other administration costs. Plausible sources of liquidity are:

1. Life policies with nominated beneficiaries — these pay out quickly and do not form part of the estate.
2. Retirement fund death benefits.
3. Cash savings and short-term credit facilities the executor may arrange.

Without a liquidity plan, the executor may be forced to sell productive assets — a farm, a business, or rental property — at distressed prices to settle liabilities.

Tax Considerations: Estate Duty, Donations Tax, and CGT

The three tax exposures that drive most estate planning decisions are:

Tax	Trigger	Key provision
Estate duty	Net value of the estate above the primary abatement (R3,500,000 in the current framework — confirm current thresholds with SARS or an attorney before relying on this figure)	Estate Duty Act 45 of 1955; section 4quat allows a deduction for property accruing to a surviving spouse, effectively rolling over the duty
Donations tax	Lifetime donations above the annual exemption	Donations tax can erode the estate but only to the extent the donor survives seven years
Capital gains tax at death	Deemed disposal of assets on the date of death	Section 9HA of the Income Tax Act, read with the Eighth Schedule

Trusts, Joint Ownership, and Other Estate Planning Tools

Beyond the will itself, the standard estate planning toolkit includes:

• Inter vivos trust — a trust created during the testator’s lifetime to hold growth assets for minor children or beneficiaries who cannot manage their own financial affairs.
• Testamentary trust — a trust created by the will itself, activating on the testator’s death for the same protective purpose.
• Joint ownership with right of survivorship — outside the estate for the surviving joint owner’s share, but not for all asset types and not always the right choice for blended families.
• Antenuptial contract considerations — relevant for business owners and property investors.
• Buy-and-sell agreements — funded by life policies to fund business succession.

Special Considerations for Blended Families, Cohabitants, and Minor Children

Three statutory provisions shape outcomes for non-traditional families, and each creates a planning hazard if it is overlooked:

• The Maintenance of Surviving Spouses Act 27 of 1990 allows a surviving spouse to claim maintenance from the deceased estate if the will or intestate succession does not make adequate provision — this can override the terms of the will.
• The Intestate Succession Act 81 of 1987 does not recognise cohabitants or life partners as heirs. They have no automatic right of inheritance and must be supported through a valid will, a nomination, or a maintenance claim.
• A parent of a minor child should appoint a guardian and a stand-in guardian, and should consider whether the children’s inheritance is paid directly at age 18 or held in a testamentary trust administered over a longer period.

Reviewing and Updating the Will

A will is a snapshot, not a permanent instruction. It should be reviewed after any of the following life events:

• Marriage (a marriage outside the will’s contemplation revokes an existing will).
• Divorce — under section 2B of the Wills Act, divorce automatically revokes any provision in favour of the ex-spouse unless the divorce order expressly preserves it.
• Birth of a child, death of a beneficiary or executor.
• A move across provincial boundaries, a change in financial circumstances, or a change in business structure.

Executing a new will automatically revokes any previous will. Codicils (formal amendments) are also possible, but most practitioners prefer a new will to keep the document clean. Beneficiary nominations on pension and life policies should be kept in step with the will — these are the most common point of misalignment.

What Happens at Death Without a Will: Intestate Succession

The Master’s office will appoint a curator bonis to administer an estate where there is no executor — a more limited and more expensive route than a properly appointed executor. Distribution follows a fixed statutory order under the Intestate Succession Act 81 of 1987: surviving spouse, descendants, parents, siblings or their descendants, more distant relatives, eventually the state. The spouse does not necessarily inherit everything — the spouse’s share depends on whether there are descendants and whether the marriage was in or out of community of property.

Where the Will Gets Executed in Gauteng

Estate planning itself is private and the documents are signed in a lawyer’s office — but the administration that follows death runs through the Master of the High Court. For Gauteng matters, the Master’s offices operate at the Pretoria seat of the Gauteng Division of the High Court (covering estates of deceased ordinarily resident in the Pretoria/Tshwane magisterial districts, including Centurion) and the Johannesburg seat (covering estates of those ordinarily resident in Johannesburg, Randburg, Roodepoort, Sandton, Bedfordview, Alberton, and Midrand).

Putting a will and estate plan in place — or winding up a deceased estate — is one of the more important legal exercises most families will face. Burger Huyser Attorneys’ Wills & Estates practice drafts and reviews wills, advises on nominations and liquidity planning, registers estates with the Master of the High Court, and administers deceased estates on behalf of appointed executors. The firm is based at 49 First Avenue, Linden, Randburg (011 888 0246), and serves clients across Gauteng from its Centurion (012 644 4990), Sandton (011 253 3080), Roodepoort (011 668 0030), Bedfordview (011 201 7190), Alberton (011 439 3990), Pretoria (012 471 5700), and Midrand branches. 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 through its dedicated Wills & Estates team. Speak to the firm before you sign — and speak to them again whenever a major life event changes the picture.

Frequently Asked Questions

How often should I review my will in South Africa?

A will should be reviewed at least every three to five years as a baseline, and immediately after any significant life event — marriage, divorce, the birth of a child, the death of a beneficiary or executor, a major change in financial position, the acquisition of foreign assets, or a change in business ownership. Failing to review can leave beneficiary nominations out of step with the will, which is one of the most common causes of unintended outcomes at death.

Can I write my own will in South Africa?

A South African testator may draft their own will provided all the formalities in the Wills Act 7 of 1953 are met — in writing, signed by the testator at the end, in the presence of two competent witnesses who also sign in the testator’s presence. Self-drafted wills are legally valid where they comply, but errors in execution or in how the clauses are drafted frequently cause the Master of the High Court to flag the file or beneficiaries to dispute the wording, so most practitioners recommend having an attorney draft or at least review the document.

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

The estate devolves under the Intestate Succession Act 81 of 1987, which sets a fixed statutory order of heirs. A curator bonis is appointed by the Master of the High Court to administer the estate because there is no executor nominated, which is generally slower and more expensive than a properly appointed executor. The surviving spouse does not necessarily inherit the whole estate — the spouse’s share depends on whether there are descendants and the matrimonial property regime.

Do life insurance and pension payouts go through the will?

Generally no — if a valid beneficiary nomination exists under section 37C of the Pension Funds Act or section 2 of the Insurance Act, the policy proceeds are paid directly to the nominated beneficiary and fall outside the estate. For that reason, keeping the nomination consistent with the will is critical; if the nomination names someone the will excludes, the nomination prevails for that asset.

What is estate duty, and when is it triggered?

Estate duty is a tax under the Estate Duty Act 45 of 1955 charged on the net value of the deceased estate above the primary abatement (R3,500,000 in the current framework, subject to confirmation with SARS or an attorney before relying on it). Section 4quat of the Act allows a deduction for property that accrues to a surviving spouse, which effectively rolls over the duty until the second death. Estate duty is paid out of the estate before distribution to heirs, which is why a liquidity plan (life policies, retirement fund proceeds, available cash) is essential.

Does a cohabiting partner inherit automatically?

No — the Intestate Succession Act 81 of 1987 does not recognise cohabitants or life partners as heirs. A cohabitant has no automatic right of inheritance and must be supported through a valid will, a beneficiary nomination on a policy or pension, or a maintenance claim from the estate. For unmarried couples, this is the single most common estate planning gap to close.