Wills & Estates

Wills & Estates

A will is the only way to make sure your estate is distributed the way you actually want it to be. Without one, South African law decides for you — and the result is often not what people expect.

Why a valid will matters

If you die without a valid will, your estate is distributed under the Intestate Succession Act 81 of 1987, not according to your wishes. Under that Act, a surviving spouse receives either R250,000 or a child's share of the estate, whichever is the greater amount, with the balance going to descendants. If there are no descendants, parents inherit; if no parents survive, siblings inherit; and the estate passes to more distant relatives before, only as a last resort, going to the state. Children born out of wedlock and adopted children have the same inheritance rights as any other child.

This default order rarely matches what a person would have chosen for their own family — particularly for blended families, unmarried partners (who have no automatic inheritance right under intestate succession), or anyone who wants to leave something to a friend, a cause, or an organisation outside their immediate family.

What makes a will valid in South Africa

The Wills Act 7 of 1953 sets out specific formalities. A will is only valid if:

• The person making it (the testator) is 16 years or older.

• It is in writing — typed or handwritten. If it's handwritten, the person who physically wrote it out cannot also be named as a beneficiary in it.

• The testator signs every page, including the last.

• Two competent witnesses, each 14 years or older, sign the will as well.

• The testator and both witnesses are all physically present together at the same time when the signing happens.

If a testator is unable to sign, a thumbprint can be used instead, but this requires certification by a Commissioner of Oaths confirming the testator's identity and intention, made in the presence of the witnesses. Get any of these formalities wrong and the will can be challenged or set aside entirely — which is why a home-drafted or template will carries real risk.

Administering a deceased estate

When someone dies, their estate has to be reported to the Master of the High Court within 14 days, at the office covering the area where the deceased lived for the 12 months before death. Reporting requires a death notice, a certified death certificate, the original will (if any), an inventory of assets, and — where there is no will — a next-of-kin affidavit, among other documents.

For estates worth more than R250,000, the Master issues Letters of Executorship, formally appointing the executor. For smaller estates, a simpler Letters of Authority process applies instead. Once appointed, the executor must publish a notice calling on creditors to lodge any claims against the estate, giving them not less than 30 days and not more than three months to do so. After that period, the executor prepares a liquidation and distribution account, which is placed at the Master's office for public inspection — giving anyone with an interest in the estate the chance to raise an objection — before the estate can finally be wound up. Even a straightforward, uncontested estate typically takes six months or more from the granting of Letters of Executorship to final distribution.

Estate duty

Not every estate pays estate duty. SARS allows an abatement of R3.5 million against the net value of an estate — estates below that value pay no estate duty at all. Above that threshold, duty is charged at 20% on the dutiable value up to R30 million, and 25% on any dutiable value above R30 million. Proper estate planning can materially affect how much of an estate is lost to duty, and to delay.

How I can help

Whether you're drafting a will for the first time, updating an existing one, planning an estate to reduce complications for your family later, or have been appointed executor of a deceased estate and need to get it right, I handle the drafting, the formalities, and the administration process directly — no call centre, no hand-off to a junior you've never met.

Get in touch

If you'd like to discuss your will or an estate you're responsible for administering, contact André Nel Attorneys to arrange a consultation.