More than 70% of South Africans do not have a will, leaving the law – not them – to decide who inherits their estate. Wills Week, from 15 to 19 September, serves as a reminder that a single financial check-up can protect your loved ones from uncertainty, disputes, and financial strain.
Without a valid will, you forfeit your constitutional right to freedom of testation. Intestate succession means the law decides who gets what, often with unintended and costly consequences.
Tyler du Plessis, a legal adviser at Allan Gray, explains: “A will is a legal document that records how your assets should be distributed upon your death and may include specific bequests, the nomination of heirs, the appointment of an executor to manage your estate, the nomination of a legal guardian to care for your minor children, and directions regarding your funeral preferences.”
A valid will not only ensures your wishes are respected, but also streamlines administration, minimises disputes, appoints a trusted executor, and safeguards minor children.
Christel Botha, fiduciary services manager at Alexforbes, says: “A well-drafted will can help structure your estate to reduce unnecessary estate duty and capital gains tax. Without proper planning, your heirs may inherit less than expected, as a large portion could go towards taxes.”
Botha warns: “Dying intestate not only strips you of your freedom of choice, but it also creates avoidable problems for your loved ones.”
Without a will, the Master of the High Court appoints an executor – possibly a stranger to your family. This can lead to delays, higher legal costs, and disputes.
Du Plessis notes that intestate estates follow the Intestate Succession Act, a process with “significant legal and emotional implications”.
Spouses may receive the same share as children, potentially leaving them without enough to cover household or childcare needs.
Parents of minor children face further hurdles, because appointing a guardian requires a court application – costly, time-consuming, and often misaligned with their wishes.
When to update your will
A will is not a once-off task. Botha says: “Life changes – marriage, divorce, the birth of a child, buying property, or starting a business – all mean your will should be updated. An outdated will can cause as many complications as having none at all.”
Siyasanga Kashe, the executive for member solutions at Momentum Corporate, agrees: “A legacy plan that worked for you in your younger age may not be suitable in this current day or at a later stage. Whether you are getting married, having a child, or starting a business, each new chapter requires that you revisit your financial plan. Taking early action will ensure that your plan remains relevant and reflects your current wishes and responsibilities.”
Kashe suggests starting with three questions:
- Do you have an up-to-date will in place?
- Have you discussed your financial wishes with your family?
- Do you have a financial adviser to align retirement planning with your estate plan?
Protecting minor children
One of the most pressing reasons to draft a will is to protect minor children.
Botha explains: “Under South African law, minors cannot directly inherit from an estate. Instead, their inheritance is paid into the Guardian’s Fund, managed by the Master of the High Court.”
Although the system is designed to protect children’s interests, it often restricts access to funds needed for essentials such as education and healthcare. The solution is a testamentary trust, created through a will, which lets parents appoint trustees to manage funds for their children.
“This gives parents peace of mind that their children will be cared for in a practical and sustainable way,” Botha says.
Safeguarding your business
Small and family-owned businesses are particularly vulnerable when an owner dies without a plan. “This uncertainty can threaten jobs, disrupt operations and put employees’ livelihoods at risk,” Botha says.
Walter Combrink, life risk and fiduciary manager at Momentum Financial Planning, adds: “Without a clear succession plan, your business assets could be frozen, and the company’s future could be in jeopardy, threatening the livelihoods of your employees and the value you worked so hard to build.”
A will can secure continuity by naming successors or creating succession plans.
Combrink also highlights usufruct arrangements: “A will could be drafted to leave the shares of the company to your children (the bare dominium owners) but grant your surviving spouse the usufruct. This provides your spouse the right to receive the income or dividends from the business for their lifetime, ensuring their financial security, while protecting the ownership interest for the next generation.”
Retirement benefits: a common misconception
Many assume their will governs all assets, but retirement benefits are an exception.
Kashe explains: “The board of trustees of the fund has the ultimate authority over who receives these funds, regardless of what your will or nomination form states.”
Trustees must investigate dependants and distribute benefits fairly, often including spouses, children, and anyone financially dependent on the deceased.
Du Plessis clarifies: “Some of your assets either fall outside of your estate or will be distributed according to your specific beneficiary nominations. Retirement fund investments, for example, are excluded from your estate.”
He emphasises keeping nominations current: “The trustees’ decision overrides your will and nominations. However, the information you supply is critical to support the trustees in their investigation. It is therefore crucial that you keep your beneficiary nominations on retirement fund investments or long-term insurance policies up to date.”
Avoiding costly mistakes
Blended families, outdated nomination forms, and digital assets add complexity. Stepchildren do not automatically inherit unless legally adopted, and access to online accounts or cryptocurrency may be lost without instructions.
Combrink cautions: “If you’ve gone through a divorce but haven’t updated your beneficiaries, your ex-spouse could still receive the funds you intended for your current family. This is a common and costly mistake that a simple review can fix.”
Kashe echoes the warning: “If your nomination form is outdated, it can lead to confusion and delays in receiving your retirement benefits, which may cause family disputes during a difficult time.”
Her checklist includes:
- When last did you update your beneficiary nomination form?
- Have you had major life changes such as marriage, divorce, or new dependants?
- Are all dependants and nominees clearly identified with full details?
From talk to action
All experts advise taking the time to consult a qualified professional who can help you draft a valid will and set up the right structures.
Botha says: “By doing so, you ensure your wishes are honoured, your children are protected, and your family’s financial future remains secure long after you are gone.”
Du Plessis emphasises the importance of regular reviews: “To safeguard your wishes, ensure that you use the services of a qualified professional to execute, review, and amend your will regularly to align with your intentions. You should also let a trusted individual know where you store your legal documents, including your last will and testament.”
Combrink highlights the role of a financial adviser in navigating complex decisions: “They are there to help you navigate these complex decisions, ensuring every detail is covered and that your wishes are legally binding. They can help you identify gaps in your current plan and offer solutions that safeguard your family’s future.”
Kashe adds that updating your financial plan – including your will and beneficiary nomination forms – and understanding the necessary processes is about more than paperwork.
“You’re offering your family and loved ones clarity and security. This preparation helps them navigate a complex and stressful financial situation during a difficult time.”
