In our 2Q25 Navigator article entitled Estates: Are you prepared for a ‘What If’ event and what happens thereafter?, dated 24 April 2025, we looked at what is involved in winding up an estate and the complexities thereof. Your will is the single most important document in that process, and on death, it is your will that determines how your estate will be distributed to your heirs. However, before we look at what to consider in your will, what happens if there is no valid will?
Intestate
If there is no valid will, the estate is then intestate. The estate is distributed according to the rules set out in the Intestate Succession Act 81 of 1987, which prioritises close family members such as spouses, children, parents, and siblings – the wishes of the deceased are not taken into account. The estate devolves as per the act. This can lead to a distribution of your estate that may not align with your wishes, causing unnecessary stress and disputes among your heirs. This is a situation easily avoided by having a will.
Definition of a will
It is the Wills Act 7 of 1953 that governs the drafting, execution, and validity of wills – hence, your will is a legal document that ensures your assets are distributed according to your wishes after your death. It is a fundamental part of estate planning and provides clarity and direction to those left behind. Drawing up a will is a responsible and often essential step, particularly as life circumstances change.
Considerations
There are several important considerations to keep in mind when drafting a will to ensure that it is legally valid, determines who gets what and helps to minimise disputes among heirs.
1. Legal and Testamentary Capacity
Before drafting a will, it is crucial to ensure that you meet the legal requirements for making one. In SA, the testator (the person making the will) must be:
- At least 16 years old; and
- Of sound mind, meaning they understand the nature and consequences of their will.
2. Appointing an Executor
The executor is the linchpin of your estate planning, the person or institution responsible for administering your estate. This includes collecting assets, paying debts, and distributing inheritances. Choosing the right executor is crucial, as they will be entrusted with carrying out your wishes and ensuring a smooth transition of your estate to your heirs.
Consider the following when deciding on an executor:
- Choose someone trustworthy, competent, and familiar with your affairs.
- Appoint a professional (e.g., attorney, accountant, or trust company) if your estate is complex.
- Name an alternate executor in case the first is unable or unwilling to act.
- Inform the person you have nominated so they are prepared.
3. Identifying Beneficiaries
Clearly specify who is to inherit from your estate. Beneficiaries may include:
- Your spouse or life partner
- Children or stepchildren
- Extended family
- Friends
- Charities or religious institutions
Include the full names, ID numbers, and relationship to you to avoid any ambiguity. Consider what should happen if a beneficiary predeceases you. You may wish to:
- Name substitute beneficiaries
- Indicate that their share should go to their descendants
- If the descendants are minors, a clause setting up a testamentary trust may be appropriate
4. Assets
It is not necessary to list assets in a will, but it does help to consider what assets are in your estate, such as:
- Property
- Investments
- Bank accounts
- Vehicles
- Personal possessions
- Digital assets
Be specific about shared assets (e.g., if married in community of property) and consider practical issues such as liquidity—can your estate meet the cash needs for tax and administrative costs?
5. Distribution of Assets
Detail how your assets should be distributed. This includes:
- Bequests: Amounts or assets to be left specifically to a particular beneficiary, e.g., “R10,000 to my godchild, namely …….”
- Residue clause: The remainder of the estate after debts and bequests. e.g., “All the residue of my estate to my spouse.”
6. Guardians for Minor Children
If you have children under 18, appoint a guardian in your will. This person will assume parental responsibilities and rights in the event of your death. Without a will, the decision may be left to the courts.
Consider:
- Appointing someone who shares your values and lifestyle
- Financial provision for the guardian
- Including a backup guardian
7. Creating a Testamentary Trust
If you leave assets to minor children or vulnerable dependents, consider establishing a testamentary trust in your will. A testamentary trust is a legal arrangement that allows a trustee to manage and distribute your assets according to your instructions after your death. This ensures trustees manage their inheritance until they reach a specified age or milestone.
Trusts can:
- Protect assets from mismanagement
- Prevent forced sale of assets
- Provide regular income to beneficiaries
- Enable conditional or staggered payments
8. Tax Implications and Estate Duty
In SA, your estate may be subject to:
- Estate duty (20%–25% above R3.5mn estate value)
- Capital gains tax (CGT) on deemed disposal at death
- Executor’s fees
- Administration and legal costs
Planning through your will (e.g., bequests to a spouse which are estate-duty exempt, or charitable bequests) can reduce the tax burden. Consider liquidity needs to ensure that assets need not be sold to pay taxes.
9. Marital Regime
Your marital property regime affects your estate. In SA, these include:
- In community of property: All assets and debts are shared equally.
- Out of community of property with accrual: Only the growth in assets during the marriage is shared.
- Out of community of property without accrual: Each spouse keeps a separate estate.
These regimes affect which assets form part of your estate and the rights of your spouse. Your will must be consistent with your marital contract. This becomes particularly important with second marriages.
10. Funeral and Burial Wishes
You may include non-binding funeral instructions in your will. Although not legally enforceable, expressing your wishes (e.g., cremation vs burial, organ donation, religious rites) can reduce family conflict and guide your loved ones.
11. Revocation of Previous Wills
Your new will should state clearly that it revokes all previous wills and codicils, to avoid confusion and potential disputes. If you have multiple wills for assets in different jurisdictions, ensure they do not unintentionally cancel each other.
12. Signing and Witnessing Requirements
To be valid in SA under the Wills Act, a will must be:
- In writing
- Signed by the testator on each page
- Signed by two competent witnesses who are not beneficiaries in the presence of the testator at the same time as they are signing.
13. Storage and Accessibility
Store your will in a safe but accessible place, such as:
- A lawyer’s office
- A bank or trust company
- A fireproof home safe
Ensure your executor or family knows where to find it. A lost or destroyed will can cause severe complications, with your estate potentially devolving under intestate succession laws.
14. Updating Your Will
Your will should reflect your current wishes and life circumstances. Review and update your will:
- After marriage or divorce
- On the birth or adoption of children
- After acquiring or disposing of significant assets
- If a beneficiary or executor dies
- Every 3–5 years
15. Avoiding Disputes
To reduce the risk of family conflict or will challenges:
- Communicate your intentions openly if appropriate
- Be unambiguous in your wording
- Use professional assistance to draft your will
16. Wills in Multiple Jurisdictions
If you own assets in more than one country (particularly immovable property), consider separate wills for each jurisdiction. Each will should apply only to assets in that country and be coordinated to avoid revoking the others. This helps ensure faster administration and compliance with foreign legal systems.
Conclusion
The importance of your will being drafted to your specifications cannot be underestimated, as can be seen from what has to be considered. Every individual’s circumstances are different, and these do change over time, and a will can be redrafted at any point.
If you need assistance, please contact Kate Trollip at kate@rcinv.co.za.
