Top Estate Planning Basics Everyone Should Know

Estate planning in South Africa starts with a valid will that complies with the formalities of the Wills Act 7 of 1953, the appointment of a competent executor, and a clear inventory of assets and liabilities for reporting to the Master of the High Court. The core legal toolkit is a will, an enduring power of attorney, and (where appropriate) a trust — supported by a written record of beneficiaries, business interests, and digital assets. Dying without a will triggers the Intestate Succession Act 81 of 1987, which dictates who inherits, and that distribution may not match the deceased’s wishes. Estate duty (above the current threshold under the Estate Duty Act 45 of 1955) and executor’s fees (capped under the Administration of Estates Act 66 of 1965) can erode the estate if not planned for.

What Estate Planning Actually Is — and What It Is Not

Estate planning is the legal arrangement a person makes for the management and distribution of their assets after death, and for decisions about their person and property if they become incapacitated. It is not just a “will” — a will is one document, but estate planning covers the will, the executor appointment, powers of attorney, trusts, beneficiary nominations on policies and retirement funds, and the strategy for minimising estate duty and executor’s fees.

Two statutes anchor South African estate planning: the Wills Act 7 of 1953 (which sets the formalities for a valid will) and the Administration of Estates Act 66 of 1965 (which governs the winding-up process administered via the Master of the High Court). The Estate Duty Act 45 of 1955 and the Intestate Succession Act 81 of 1987 sit alongside them — one sets the duty on what is left, the other sets the default rule for what happens when no will exists.

For most South African households, the practical scope is narrower than the legal literature suggests: a valid will, an enduring power of attorney, a nominated executor, and an up-to-date record of life policies, retirement fund beneficiaries, and business interests. Anything beyond that — a trust, a deceased-estate structure, an inter vivos bequest scheme — is built on top of that foundation once the basics are in place.

The Core Legal Documents You Need

An effective estate plan rests on a small set of documents working together. None of them substitutes for another, and the gaps between them are where most failed plans fall apart.

Document	What it does	Statutory anchor
Will	Sets out who inherits what, who is excluded, and who the executor is — the central dispositive document	Wills Act 7 of 1953
Enduring power of attorney	Authorises a chosen person to manage the principal’s financial affairs if capacity is lost	Power of attorney governed by common law; enduring effect under the amendments to the Wills Act
Revocable / inter vivos trust	A separate legal entity that holds assets during the founder’s lifetime and distributes after death — useful for blended families, business continuity, and estate-duty mitigation	Trust Property Control Act 57 of 1988
Living will / advance healthcare directive	Records the principal’s wishes for medical treatment in a terminal or irreversible condition	National Health Act 61 of 2003
Beneficiary nominations	Operate independently from the will for life policies, retirement annuities, and pension funds — payment goes to the nomination, not the will	Long-Term Insurance Act 52 of 1998; Pension Funds Act 24 of 1956

The single most common omission is the enduring power of attorney. A will only operates at death — it cannot help a person who becomes incapacitated while still alive. The enduring power of attorney is the document that bridges that gap, and its absence is often the reason a family ends up in the High Court on an urgent basis to have a curator bonis appointed.

Drafting a Will That Will Actually Be Upheld

The Wills Act sets out four requirements that every South African will must meet, and a failure on any one of them can be fatal to the document:

1. The testator must be 16 or older and of “sound disposing mind” — capacity is the most litigated ground for will challenges.
2. The will must be in writing.
3. It must be signed by the testator in the presence of two competent witnesses.
4. The two witnesses must then sign in the presence of the testator and of each other.

The Master of the High Court requires the original signed will for the reporting process; a copy is generally not accepted. The original must be kept safe and locatable, but not in a place the executor cannot reach after death — a sealed envelope in the family lawyer’s office, a fireproof safe at home, or a safe deposit box whose access is documented for the executor are all workable answers. A foreign-domiciled will can be administered in South Africa, but the Administration of Estates Act sets out specific procedures that apply, and the will must usually be resealed by the Master before it can be acted upon.

Choosing Your Executor — and Why It Matters

The executor is the person or entity responsible for reporting the estate, paying debts, and distributing to heirs under the Master’s supervision. The role is more administrative than most testators expect, and the practical workload — drafting the liquidation and distribution account, advertising for creditors, lodging the estate duty return, corresponding with the Master — is significant even for modest estates.

The Master may confirm the nominated executor, or, if the nominated person is unfit, unwilling, or not a “suitable person” under section 31 of the Administration of Estates Act, may appoint someone else. A family member can be nominated, but conflict of interest, geographic distance, or incapacity can make a professional executor — a fiduciary registered with the Fiduciary Institute of Southern Africa, or an admitted attorney with the right background — the safer choice.

If the nominated executor is deceased, refuses, or is unfit, the Master’s office can appoint an alternative — and that alternative is not always the deceased’s first choice. For testators with blended families, foreign assets, or business interests to wind down, naming a co-executor or a professional executor in addition to the family member is the usual fix.

The Master’s Office: Where the Estate Is Reported

Every deceased estate must be reported to the Master of the High Court in the jurisdiction where the deceased was ordinarily resident at death. The Master’s office is not part of the Magistrate’s Court — it is an office of the Department of Justice and Constitutional Development attached to each High Court division. The Pretoria Master’s office serves Centurion, Midrand, and northern Gauteng; the Johannesburg Master’s office serves the greater Johannesburg metro and southern municipalities; and a separate Master’s office sits at the seat of each provincial division.

Burger Huyser Attorneys’ Wills & Estates practice is led in administration by its Deceased Estate Administrator (Lance Pearson), operates from the Linden head office in Randburg, and coordinates wills and estate-administration work across the firm’s Gauteng branches (Sandton, Roodepoort, Pretoria/Menlyn, Centurion, Bedfordview, Alberton, and Midrand). The firm is a member of the Pretoria Attorneys Association and the Johannesburg Attorneys Association, and provides both the drafting work (wills, powers of attorney, trust formation) and the administration work (reporting to the Master, obtaining the Letter of Executry, winding up the estate) under one roof.

What Happens If You Die Without a Will

The Intestate Succession Act 81 of 1987 applies, and the estate is distributed according to a fixed statutory formula rather than the deceased’s wishes. The order is settled: the surviving spouse, descendants, parents, and siblings inherit in defined shares, with the rules changing depending on who survives. Life partners, step-children, and other dependants are not automatically included, and the Master appoints an administrator (often the family member who steps up) rather than confirming the deceased’s chosen executor.

The process is generally slower and more contested than where a valid will exists, and the result is often a family dispute the deceased could have pre-empted with a single page of properly witnessed instructions. A “small estate” (currently under R250,000 in gross value) can be dealt with under a simplified process in terms of section 18(3) of the Administration of Estates Act, but the threshold and paperwork still apply, and the Master must still be approached.

Estate Duty, Executor’s Fees, and Trust Property

The two main costs that erode an estate on death are estate duty and executor’s fees, both of which the testator can plan for but cannot avoid entirely.

Cost	Statutory basis	Rate / tariff
Estate duty	Estate Duty Act 45 of 1955	20% on the dutiable value above the primary abatement (R30 million for 2025/2026, per the latest National Treasury adjustment); 25% on amounts above R30 million
Executor’s fees	Administration of Estates Act 66 of 1965 (tariff in the regulations)	3.5% of the gross value of the estate for an executor appointed under the will, plus VAT; the same statutory tariff applies to an administrator appointed by the Master where there is no will

The most common and largest estate-duty saving is the section 4(q) deduction for property bequeathed to a surviving spouse. Bequests to a surviving spouse, and qualifying property in a surviving spouse’s estate, are deductible from the dutiable value, and for most married couples this is the lever that brings the estate below the threshold. Trust property — assets owned by an inter vivos trust — does not form part of the deceased’s estate at death, but the Master looks through the trust to the true beneficial owner when calculating duty, so the saving is in administration rather than in the duty itself.

Common Mistakes That Derail an Estate Plan

• Keeping the only original will in a safe deposit box the executor cannot access after death. A will the Master and the executor cannot reach is, for practical purposes, no will at all.
• Failing to update the will after marriage, divorce, adoption, or the birth of a child. A pre-marriage will is not automatically revoked, but a divorce revokes bequests to the former spouse under section 2B of the Wills Act — a will drafted before a divorce must be redone.
• Treating a beneficiary nomination on a policy as redundant. The policy pays to the nomination, not the will. Where the nomination and the will contradict each other, the nomination wins.
• Naming the same person as executor and sole beneficiary. This creates a conflict of interest in the winding-up process and is generally inadvisable; a second executor or a professional executor is the usual fix.
• Putting off the plan because there is “not enough.” Executor’s fees and estate duty apply on small estates as well, and intestate succession is the most expensive default — both in fees and in family dispute.

When to Review and Update Your Estate Plan

The rule of thumb is to revisit the plan after any major life event: marriage, divorce, the birth or adoption of a child, the death of a beneficiary, the sale of a business, or a material change in the estate’s value. A change in the relationship with the nominated executor also matters — executor appointments are a matter of trust, not obligation, and the role can always be declined. A full review every three to five years is a reasonable baseline for an estate that has not changed in composition.

Two changes trigger automatic updates. A divorce revokes bequests to the former spouse under section 2B of the Wills Act, so a will drafted before a divorce must be redone. A relocation to or from South Africa changes domicile and the choice of applicable law, which can change which country’s rules govern the winding-up process — particularly where immovable property in more than one jurisdiction is involved.

Putting an estate plan in place, or reviewing one after a life event? The Wills & Estates team at Burger Huyser Attorneys can take you through a will, an enduring power of attorney, and (where appropriate) a trust, and then support the executor’s work when the time comes. The firm is led in this area by its Deceased Estate Administrator (Lance Pearson) and practices from the Linden head office at 49 First Avenue, Randburg (011 888 0246, after-hours 061 516 6878), with wills and estate-administration work coordinated across the firm’s Gauteng branches. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is a member of the Pretoria Attorneys Association and the Johannesburg Attorneys Association.

Frequently Asked Questions

Do I need a lawyer to write a will in South Africa?

Not strictly — anyone 16 or older with the required mental capacity can draft their own will, provided the formalities of the Wills Act 7 of 1953 are met (in writing, signed in the presence of two competent witnesses, who then sign in the presence of the testator and each other). The practical case for a lawyer is that most failed estate plans are not failed on the face of the will — they are failed on context: tax, executor suitability, beneficiary identification, and the surrounding documents (policies, trusts, nominations) that the will does not control.

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

The Intestate Succession Act 81 of 1987 applies, and the estate is distributed according to a fixed statutory formula starting with the surviving spouse and descendants, then parents and siblings, and so on. Life partners, step-children, and other dependants are not automatically included, and the Master of the High Court appoints an administrator rather than confirming the deceased’s chosen executor — the process is generally slower and more contested than where a valid will exists.

How much is estate duty in South Africa?

Estate duty is levied at 20% on the dutiable value of the estate above the current primary abatement (R30 million for 2025/2026), and at 25% on amounts above R30 million, in terms of the Estate Duty Act 45 of 1955. Section 4(q) of the Act provides a deduction for property bequeathed to a surviving spouse, which is the most common and largest estate-duty saving available in practice.

What is the difference between a will and a trust in South Africa?

A will is a written dispositive document that takes effect on death and is administered through the Master of the High Court. A trust is a separate legal entity created during the founder’s lifetime (an inter vivos trust) that holds and manages assets for named beneficiaries — those assets are not forming part of the founder’s estate at death, although the Master will look through the trust to the true beneficial owner for estate-duty purposes. The two documents do different work: a will distributes on death; a trust can manage assets while alive.

How often should I update my will?

As a rule, after any major life event — marriage, divorce, the birth or adoption of a child, the death of a beneficiary, the sale of a business, or a material change in the estate’s value. A divorce also revokes bequests to the former spouse under section 2B of the Wills Act, so a will drafted before a divorce must be redone. A full review every three to five years is a reasonable baseline for an estate that has not changed in composition.

Can I name the same person as executor and sole beneficiary?

Technically yes, but it creates a conflict of interest in the winding-up process and is generally inadvisable. The Master of the High Court may require a separate administrator where the executor is the sole beneficiary, and the practical administration (notifications, accounting, distribution) is harder to discharge objectively. A second executor, or a professional executor, is the usual fix.