Do You Need a Will in South Africa?

What Happens If You Die Without a Will?

If you die without a valid will, you die "intestate." Your estate is then distributed according to the Intestate Succession Act 81 of 1987. This means the law, not you, decides who inherits your assets.

Under the Intestate Succession Act, your estate is divided as follows:

• If you have a surviving spouse and no children: Your spouse inherits the entire estate
• If you have a surviving spouse and children: Your spouse receives R250,000 or a child's share (whichever is greater), and the remainder is divided equally among the children
• If you have children but no spouse: The children inherit equally
• If you have no spouse and no children: Your parents, siblings, or other blood relatives inherit according to a set order of succession

What is a Will?

A will (also called a last will and testament) is a legal document in which you set out how your assets should be distributed after your death. It is governed by the Wills Act 7 of 1953, which sets out the legal requirements for a valid will in South Africa.

A valid will allows you to:

• Choose who inherits your assets (your beneficiaries)
• Appoint an executor to administer your estate
• Nominate a guardian for your minor children
• Create a testamentary trust to protect your children's inheritance until they are old enough to manage it
• Exclude inherited assets from your beneficiaries' community of property or accrual
• Revoke any previous wills

Requirements for a Valid Will in South Africa

Under the Wills Act 7 of 1953, a will must meet the following requirements to be legally valid:

1. The testator must be 16 years or older and mentally competent at the time of signing
2. The will must be in writing. It can be typed or handwritten, but it must be a physical document
3. The testator must sign the will at the end of the document, on every page
4. Two competent witnesses must sign the will in the presence of the testator and in the presence of each other. Witnesses must be at least 14 years old
5. A witness may not be a beneficiary or the spouse of a beneficiary named in the will. If a witness is a beneficiary, that specific bequest is void

"A will that does not comply with the Wills Act can be declared invalid by the court. This means your estate will be distributed as if you had no will at all."

Types of Wills

There are three common types of wills used in South Africa, each suited to different circumstances:

Standard Will (R400)

A standard will is for a single person (or a married person who wants their own separate will) leaving their estate to named beneficiaries. It includes:

• Revocation of all previous wills
• Appointment of an executor and fallback executor
• Nomination of beneficiaries and succession beneficiaries
• Collation clause (beneficiaries are not obliged to return lifetime gifts)
• Vesting conditions and restrictions on inheritance
• Exclusion from community of property and accrual

Combined Will (R500)

A combined will is for married couples, particularly those married in community of property. Both spouses sign the same document. It includes:

• Joint revocation of previous wills
• Joint appointment of an executor
• Surviving spouse inherits the estate
• Provisions for what happens if both spouses pass away simultaneously
• Succession beneficiaries if the surviving spouse also passes away
• Exclusion from community of property for heirs

Trust Will (R700)

A trust will is the most comprehensive option. It creates a testamentary trust that comes into effect on the testator's death. This is typically used when you have minor children and want to protect their inheritance until they reach adulthood (usually 21 years of age). It includes:

• Everything in the Standard will
• Appointment of trustees (separate from the executor)
• Detailed trust powers (26 sub-clauses covering investment, borrowing, beneficiary payments, and more)
• Categorised asset distribution (immovable property, investments, vehicles, business interests, cash)
• Guardian nomination for minor children
• Trust termination conditions (typically when the youngest child turns 21)
• Compliance with the Trust Property Control Act 57 of 1988

The Role of the Executor

The executor is the person responsible for administering your estate after your death. Their duties include:

• Reporting the estate to the Master of the High Court
• Collecting and safeguarding your assets
• Paying your debts and any estate duties
• Distributing the remaining assets to your beneficiaries according to the will
• Filing the necessary accounts with the Master

You should choose someone you trust, and always appoint a fallback executor in case your first choice is unable or unwilling to act. The executor is entitled to a fee, which is regulated by the Administration of Estates Act 66 of 1965 (currently a maximum of 3.5% of the gross value of the estate).

Protecting Minor Children

If you have minor children, your will is the only place where you can nominate a guardian to look after them if both parents pass away. Without a will, the court will appoint a guardian based on the Children's Act, which may not be the person you would have chosen.

A trust will takes this a step further by creating a testamentary trust that holds your children's inheritance until they reach 21. The trustees manage the funds and can use them for the children's education, medical care and maintenance. This prevents a large inheritance from being mismanaged or accessed too early.

Exclusion from Community of Property

If your beneficiary is married in community of property, their inheritance forms part of the joint estate with their spouse. This means that if the beneficiary later divorces, their spouse could be entitled to half of the inheritance.

All three will types include an exclusion clause that prevents inherited assets from falling into the beneficiary's community of property or accrual system. This is one of the most important protective provisions in a will.

How to Order a Will Online

At Anel Krog Attorneys, you can order a professionally drafted will online from R400. All wills are drafted by an admitted attorney and comply with the Wills Act 7 of 1953.

1. Choose your will type (Standard, Combined or Trust)
2. Fill in the details (testator, executor, beneficiaries, asset distribution)
3. Pay securely online via PayFast
4. Receive your will as an editable Word document within 30 minutes

Once you receive your will, you must print it and sign it in the presence of two witnesses to make it legally valid.