Wills & estates

Two very different jobs sit inside this area of law. One is planning, which means writing a will while you are alive so that the people you leave behind are not guessing. The other is administration, which means reporting an estate, winding it up and getting the assets to the heirs after somebody has died. Most people arrive here because of the second one, in the week after a funeral, holding a death certificate and a letter from a bank and no idea who to phone first. This page sorts out which question is actually yours and points you at the guide that answers it.

What this area of law covers

Five statutes do most of the work. The Wills Act 7 of 1953 sets out what makes a will valid. The Intestate Succession Act 81 of 1987 decides who inherits when there is no valid will. The Administration of Estates Act 66 of 1965 governs everything that happens after a death: reporting the estate, appointing an executor, paying creditors and distributing what is left. The Maintenance of Surviving Spouses Act 27 of 1990 lets a widow or widower claim reasonable maintenance from the estate. Estate duty, the tax an estate pays before the heirs receive anything, is charged under the Estate Duty Act 45 of 1955.

Around those sit trusts, which are regulated by the Trust Property Control Act 57 of 1988, and the Master of the High Court, the government office that supervises every deceased estate in the country.

The Master's office is the part people misunderstand most. It is a public office. It deals with members of the public directly, it will tell you what stage a file has reached, and it charges you nothing to report an estate. You do not need an attorney to walk through its door. In a small, simple estate you may not need one at all.

Where to start, by problem

Find the sentence closest to your situation and start there.

• Somebody has died and you do not know what to do first. Read how to report a deceased estate to the Master. This is the first step in every estate, big or small.
• You do not know whether there is a will, or where it is. Read how to find out if someone left a will before you assume there is none.
• There is no will. Read what happens if you die without a will in South Africa. The Act, not the family, decides who inherits.
• You want to write your own will. Read how to write a valid will in South Africa. Most homemade wills fail on signing, not on wording.
• You are the executor, or the family has asked you to act. Read what does an executor do and how much do they charge so you know what you are agreeing to.
• You are not sure whether you need a lawyer at all. Read do I need an attorney to wind up an estate.
• The estate is taking forever and nobody will tell you why. Read how long does it take to wind up a deceased estate.
• The executor is not doing the job, or you no longer trust them. Read can an executor be removed.
• You think the will is unfair, forged, or was signed under pressure. Read can a will be contested in South Africa before you spend anything on litigation.
• There is a house involved. Read what happens to a house when the owner dies, especially if there is still a bond over it.
• A bank has frozen an account you share. Read what happens to a joint bank account when someone dies.
• You were being supported by the person who died. Read how to claim maintenance from a deceased estate.
• You want to know what the estate will pay in tax. Read how is estate duty calculated in South Africa.
• You have young children or an heir who cannot manage money. Read what is a testamentary trust and do I need one.
• You want to record your wishes about medical treatment. Read what is a living will and is it legal in South Africa. A living will is a separate document from the will that deals with your property.

The deadlines that catch people out

Fourteen days to report a death to the Master. An estate must be reported to the Master of the High Court within 14 days of the date of death. Miss it and the estate does not disappear, but nothing can lawfully move. No executor is appointed, no bank account is released, no property is transferred, and every claim sits waiting.

The window after a divorce. If you divorce and do not change your will, the law gives you only a limited period during which a bequest to your former spouse is disregarded. Once that period passes, the old will stands and your ex inherits exactly what it says. Rewriting a will after a divorce is a same-week job, not a someday job.

The creditors' advertisement. Once the executor is appointed, the estate is advertised and creditors are given a fixed period, set by the Administration of Estates Act, to lodge their claims. A creditor who sleeps through it risks losing the claim. If you are owed money by someone who has died, watch for that notice.

The liquidation and distribution account. Near the end, the executor's account lies open for inspection for a fixed period at the Master's office and the local magistrate's court. Objections must be lodged with the Master inside that window. After it closes, the executor distributes, and undoing a distribution is far harder than objecting on time.

Ordinary prescription. A debt owed to the estate does not stop running because somebody died. If the estate is owed money, check when that claim expires with the prescription checker.

What it costs, and what is free

The full breakdown is on what does winding up an estate cost. The short version is that an estate carries two main charges: the executor's fee, which is regulated and calculated on the value of the estate, and estate duty where the estate is large enough to attract it. Attorney fees for a contested matter are separate and are charged by the hour.

Plenty of it is free. Reporting an estate to the Master costs nothing, and the Master's staff will tell you what documents are missing. In a small estate the Master may appoint a family member to wind it up instead of a full executor, which removes the professional fee entirely. Writing your own will costs nothing if you get the signing right. If you cannot afford an attorney for a dispute, check Legal Aid South Africa and your nearest university law clinic.

The mistakes that cost the most

• Using a beneficiary as a witness. A will needs two competent witnesses, and a witness who is also a beneficiary generally forfeits the inheritance. The will survives; the gift does not.
• Signing in the wrong place, or not on every page. Signature formalities are the single biggest reason homemade wills are rejected. The Master looks at the signing before it looks at the wording.
• Hiding the original. A photocopy in a safe with the original nowhere to be found turns a simple estate into a court application. Tell somebody where the original is.
• Never updating after a marriage, divorce, new child or property purchase. An out-of-date will is worse than no will, because it distributes your estate according to a life you no longer live.
• Distributing before the account is finalised. An executor who hands out cash before creditors and tax are settled becomes personally exposed for the shortfall.
• Fighting over the estate instead of the issue. Litigation between siblings is paid for out of the estate, which means both sides are burning their own inheritance. Get an honest assessment of the merits before you start.

The tools on this site that help here

• The intestate succession calculator answers "who inherits if there is no will", including how a surviving spouse and children divide an estate.
• The executor fees and estate duty calculator shows what an estate pays out before the heirs see anything, so you can sanity check an executor's account.
• The prescription checker tells you whether a debt owed to or by the estate is still enforceable.
• The simple will template gives you a starting structure and, more importantly, the signing instructions people get wrong.
• The deceased estate reporting checklist is the document list to take to the Master so you do not make the trip twice.

When you need an attorney

Get proper help when the estate includes a business, a farm, a trust or assets outside South Africa. Get help when there is a dispute about the validity of the will, when an heir is disinherited and wants to challenge it, or when you need an executor removed. Get help when the deceased was married under customary law, was married more than once, or when the marital regime is unclear, because who inherits depends on that answer. Get help when the estate is insolvent, meaning the debts exceed the assets, because the order in which creditors are paid is strict and getting it wrong is personal. And get help when a maintenance claim by a surviving spouse or a minor child is being resisted.

For a small estate with a clear will, a house and a bank account, you can often do it yourself with the Master's help.

LawMatch is not a law firm. Everything here is general information about South African law, not legal advice on your situation.