Do I Need a Will? Estate Planning Basics for South Africans

A will is one of the most important legal documents a person will ever sign. Yet the majority of South Africans do not have one. If you die without a valid will — known as dying intestate — your estate is distributed according to the Intestate Succession Act, which may not reflect your wishes or provide adequately for your dependants.

What happens if you die without a will?

The Intestate Succession Act distributes your estate in a fixed order: spouse, children, parents, siblings, and so on. This can produce outcomes you would not have chosen — a life partner may face a contested claim to prove their status, a specific asset may not go to the person you intended, and the process of winding up the estate without a nominated executor takes longer and costs more.

Who should have a will?

Almost everyone. If you own any assets — property, a vehicle, savings, business interests, retirement annuities — or have dependants, you should have a will. The absence of a will often creates the most problems in modest estates where family members need access to funds quickly.

What must a valid will contain?

Under the Wills Act, a valid will must be in writing, signed at the end by the testator, and witnessed by two competent witnesses who sign in the presence of the testator and each other. A witness who is also a beneficiary under the will forfeits their benefit.

Key decisions your will must address

Executor

Your executor administers your estate after your death. Nominate someone you trust. Executor’s remuneration is capped by the prescribed tariff at a maximum of 3.5% of the gross value of the estate (plus VAT where the executor is a VAT vendor), together with 6% on income collected after death. It is a maximum rather than a fixed entitlement, and can be reduced or waived by agreement.

Guardian for minor children

If you have children under 18, your will should nominate a guardian. Without a nominated guardian, the High Court decides. This is one of the most important decisions parents can make.

Testamentary trust

Where your estate includes assets for minor children, a testamentary trust within the will ensures those assets are managed by a trustee until the children reach an appropriate age. Without this, the Guardian’s Fund administers the money, which is restrictive and slow.

When should you update your will?

Your will should be reviewed after any major life event: marriage, divorce, the birth of a child, the death of a beneficiary or executor, or a significant change in assets. As a rule, review your will every three to five years.

HvS Attorneys drafts wills, assists with estate planning, and helps families administer deceased estates in Johannesburg. Contact us to get your will in order.

Divorce and your will

Section 2B of the Wills Act provides a limited safety net: if you die within three months of your divorce, any bequest to your former spouse is read as though they had predeceased you — unless the will shows you intended to benefit them anyway. After that three-month window closes, the bequest stands. An ex-spouse can therefore inherit under an outdated will, which is why reviewing your will promptly after a divorce matters.

Legal Authority

• Wills Act 7 of 1953 — s 2(1)(a) (execution formalities); s 4A (witness who is a beneficiary); s 2B (effect of divorce within three months)
• Administration of Estates Act 66 of 1965 — administration of deceased estates
• Chief Master’s Directive 4 of 2011 — executor’s remuneration tariff (maximum 3.5% of gross estate value; 6% on post-death income)
• Intestate Succession Act 81 of 1987 — distribution where there is no valid will

Related reading:
If you die without a valid will, the Intestate Succession Act decides who inherits — read: what happens to your estate if you die without a will in South Africa.
Business owners should also consider what happens to their shares on death: registering a company does not make you its owner.
Commercial property can form part of an estate — see: commercial lease agreements in South Africa.