Estate Planning in South Africa: Essential Questions Answered

Estate planning is a critical part of financial planning, yet it often gets overlooked. This process involves drafting a will, assigning assets to beneficiaries, and understanding how a deceased estate will be administered. To shed light on this topic, here are answers to some frequently asked questions about estate planning that might assist in helping you navigate the complexities of estates.

What happens if I pass away without a will?

When a person dies without a will (or with an invalid will), their estate is settled according to the laws of intestate succession. This scenario is far from ideal, causing potential delays and administrative issues during an already difficult period for your loved ones. The straightforward solution to avoid such circumstances is to create a legally valid will.

Can my partner and I create a joint will?

It is possible to create joint wills, particularly when the intention is for the estate of the first spouse to be transferred to the surviving spouse. However, it is recommended to seek guidance from a fiduciary expert when setting up a joint will.

Do I require a separate will for my foreign assets?

Generally, your South African will covers your worldwide assets. However, depending on the type of assets and their locations, you may need a foreign will. For instance, owning immovable property or shares in an overseas company may require a foreign will.

Am I free to bequeath my assets to anyone?

South African law does grant testators freedom of testation, meaning you can bequeath your assets to any individual or organisation, with a few exceptions. For instance, your will must not contain any provision that’s illegal, against public policy, or impossible to fulfil.

Should I include my policies in my will?

Life policies or endowments are directly paid to the beneficiaries you have nominated, and there is no requirement to include them in your will. Mentioning them in your will could potentially create confusion. Similarly, benefits from pension, provident, preservation, or retirement annuity funds are distributed to your financial dependents by the trustees of the respective funds.

Will my spouse have access to our bank accounts after my death?

Bank accounts are generally expected to be frozen upon your death, but there is typically a delay before this takes place. However, your executor can work with the bank and make suitable arrangements to enable your spouse to continue conducting transactions without interruption.

Can I leave my primary residence to my child while allowing my spouse to live there after my death?

Yes, there are mechanisms available that allow you to leave your primary residence to your child while ensuring your spouse can retain the right to live there. However, this aspect of estate planning can be intricate, and it is advisable to seek guidance from an expert when dealing with such situations.

Should I establish a testamentary trust in my will?

If you wish to protect and preserve assets for minor children, mentally or physically disabled beneficiaries, or a surviving spouse, setting up a testamentary trust in your will can be an effective solution.

Can I nominate my spouse as my executor?

Although it is an option to designate your spouse as the executor of your estate, it’s worth considering that the responsibilities and time commitment involved can be burdensome, especially during a time of grief. It may be beneficial to appoint a fiduciary expert as a co-executor alongside your spouse to alleviate the load and ensure efficient management of your estate.

Estate planning is a multi-faceted process that requires careful thought and expert advice. While this article provides a general overview, it’s always recommended to seek professional guidance when drafting a will, bequeathing assets, or dealing with any other aspects of estate planning. Don’t leave your estate planning to chance. Secure your legacy and the future of your loved ones by seeking expert advice today.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)