The South African legal system recognises the rights of foreigners, residents, and persons in customary marriages when it pertains to property and wills. As you can see, if you do your research and get some help from an attorney when you need it, making a will in South Africa may be a simple process.
South African Estate Planning and Wills
Making a will in South Africa is common and easy; with just two witnesses and a signed document, you can settle your estate on the same day. However, if you are not in a hurry, consulting with an expert who focuses on inheritance law can assist you to navigate the procedure and determine the most equitable distribution of your wealth. Real estate, trusts, financial accounts, pensions, and everything else of value you own are all part of your estate.
South African Inheritance Law
Everyone with property in South Africa is subject to the country’s inheritance law, which generally follows the desires of the deceased. The Maintenance of Surviving Spouses Act is the only exception that allows a spouse who is disinherited to file a petition to claim a portion of the inheritance for their support. In South Africa, forced heirship is not tolerated. However, if the decedent did not leave a will, you must follow certain legal procedures.
Pensions and the Law of Inheritance
In most cases, the value of a pension is included in the total worth of an estate if the person who passed away received or was entitled to receive a pension. It is in your greatest interest as a concerned family member or friend to seek the advice of a professional. Choosing whether to take your pension as a lump sum or an annuity can have a significant impact on your tax benefits and rates, so it’s important to do your research before making a decision.
Inheritance Regulations in Other Countries
If your estate includes property in South Africa, it is wise to have a South African will draw up to ensure that your wishes are carried out. It is also acceptable (and likely advisable) to create separate wills for your domestic and international property. However, you should seek the advice of an attorney with experience in international law to make sure that your efforts do not nullify each other.
Refusing to Accept Inheritance and Challenging a Will
You are not obligated to accept any gifts that are left to you in a will. However, things might get complicated if you wish to dispute a will in South Africa because the country does not employ a ‘right to inherit’ system, wherein a child or a parent or a sibling has an entitlement to the property of the person they love upon their death. If you want to challenge a will based on a forgery, mental incapacity, or some other special circumstances, you should see an attorney for guidance.
South African Intestacy Law in the Absence of a Will
In South Africa, the Intestate Succession Act governs the distribution of an individual’s estate in the event of death without a valid testament. South African law provides for the spouse who survived and children to divide an estate upon the decedent’s intestacy, with the surviving spouse getting at least R250,000 or a child’s share, whichever is larger.
If a couple owned property together throughout their marriage (known as “community of property”), then the spouse who survived would receive half of the estate while the remaining half would be distributed under South Africa’s intestate succession laws.
South Africa Has a Lot of Unclaimed Inheritance
If you die without a will in South Africa and don’t have any direct heirs, your fortune will be transferred to your next of kin according to the Intestate Succession Act. If there are no surviving relatives and no will, the deceased person’s assets will be taken by the state.
The deceased, based on the worth of any large gifts or donations made by them before or during their lifetime, would have been subject to the applicable tax rates. Gifts made by a decedent before their death are unlikely to be taxable upon their estate, but if this is a worry of yours, you should consult an expert on the matter.
South African Marketing Testaments
Making a will is important if you own property or have other assets so that your intentions can be carried out. If you are a foreign national with links and assets in a country other than South Africa, you may wish to establish a separate will for your possessions in South Africa and a separate will for your assets in your home country. Your will can be revised or revoked at any time, provided the new version satisfies the legal standards for a will. As always, if your situation is very complicated, you should consult a lawyer for guidance.
The South African Will-Writing Guide
Some of the requirements for drafting the last will in South Africa are similar to those in other nations. For instance, if you die, your estate will need to be managed by an executor whom you would name. The executor’s responsibilities involve interacting with debtors and creditors and using estate funds to cover expenses like estate duty and burial charges. You can get the services of a professional like a lawyer, bank, or will writer to draught your South African will, but you can also do it yourself with witnesses. A spouse might be included in the will, or you can create a joint will.
The Essentials of a Will
Statute of Wills Creating a valid will in South Africa is governed by the country’s laws. The following are some examples:
- Each page of the will must be signed at the bottom;
- The will needs to be witnessed by at least two people;
- All of the witnesses must be at least 16 years old and must sign the will as well;
- Neither the executors nor the beneficiaries may be among the witnesses.
- Preparation for drafting a will
To create a valid will in South Africa, you’ll need the following:
- Who will be handling your estate and what they seem like
- Details about your marriage (including whether or not you share communal property) and your spouse’s name and ID number are required.
- A certified copy of your marriage licence or divorce decree and settlement agreement from South Africa.
- Names and Social Security numbers of any minors or other beneficiaries you want provided for in your will
- Please list the grandkids’ names and Social Security numbers if you have any.
- If you have small children, please include the name and contact information of a guardian or guardian.
- Provide specifics about who and what you want to help below.
- Original or certified copies of title deeds or mortgage bonds for South African real estate.
- A copy of every insurance policy
- Compiling a list of debts
Obtaining Help in Drafting a Will
Get in touch with a lawyer to help you prepare your will if your estate is very complex. You can save money by creating your own will using a South African will template. After you’ve prepared your will, you should preserve the original somewhere safe and distribute copies to your loved ones, who should also know where to find the original.
Changing or Rescinding a Previous Will
A will can be updated with a codicil, which must be signed in the presence of two witnesses and follow the same formalities as a valid will, or the entire will can be rewritten. The two witnesses to the codicil need not be the same people who witnessed the original will’s signing. A will can be revoked in its entirety by writing a new will explicitly indicating that the old will is null and void, or by physically destroying the old will. However, if you wish to modify or cancel your will, you should seek legal counsel to ensure that no errors are made.
Probate and Will Execution in South Africa
The Master of the High Court must be notified of the death within two weeks (14 days) to begin settling the estate. This includes formally recognising the executor. The person designated in a will to administer the deceased’s estate (collect assets, pay debts, and divide the remainder to beneficiaries) is called the “executor.” Many people choose to have their lawyer serve as executor because of the specialised characteristics of the work involved. Verify if a lawyer is licenced by looking at their profile on the Law Society of South Africa’s website.
The South African Real Estate Appraisal Process
Depending on the details of your life, the assets and liabilities that make up your estate could include things like real estate, investments, pensions, cash on hand (bank accounts), and more. Remember that an appraiser who specialises in valuing estates should be contacted if you need property valued.
All estates in South Africa with a value over a particular threshold are required to pay inheritance tax, often known as estate duty, and may also be liable for capital gains tax and contributions tax. Learn more about the various South African taxes here. In South Africa, the government collects estate duty from anyone who leaves behind more than R3.5 million. The following are the tax rates that apply beyond that:
- R3,500,000 – R30,000,000 – 20%
- Over R30,000,001: 25%
Advice for South African Estate Planners
We can’t stress enough how important it is to work with an attorney who has the experience and training to assess your unique circumstances and provide sound guidance as you create your will. There are additional considerations if you are an international citizen or have overseas holdings. Your executor in South Africa may not be able to carry out your secondary will in your place of residence if, for instance, you own property outside of South Africa and possess a different will for those assets. A lawyer can help you out in cases like these.