Understanding Wills and Estate Planning: Your Voice From Beyond

 This blog post is based on insights from a panel discussion during South Africa's National Will Week, featuring experts from ProBono.org, Mitchell's Plain Community Development Project, and Theron Properties.

What is a Will, Really?

A will is fundamentally your voice speaking from beyond – a legal document that ensures your loved ones are cared for and your wishes respected after you pass away. Yet statistics show that the majority of South Africans don't have one.

Think of it this way: a will is your personal roadmap for how you want your assets divided once you're no longer here to make those decisions yourself. Without this roadmap, the law steps in with its own standard plan – and it might not align with what you would have wanted.

The Reality of Dying Without a Will (Intestate Succession)

When someone dies without a will, their estate falls under "intestate succession." This doesn't mean your assets automatically go to the state, as many people believe. Instead, there's a legal formula:

If you're married in community of property:

Half goes to your surviving spouse

The other half is divided according to the Intestate Succession Act

The surviving spouse gets R250,000 or a child's share (whichever is greater)

Children inherit equally if there's no spouse

The hierarchy continues:

If no spouse or children: parents inherit

If no parents: nearest relatives inherit

Only if no relatives can be found does the state eventually claim the assets

 

But here's the problem: this legal formula doesn't consider the nuances of your family situation. It doesn't account for who supported you during illness, which child needs housing more urgently, or who should care for younger siblings.

The Hidden Costs and Complications

Executor Fees

Executors (whether banks, attorneys, or individuals) can charge up to 3.5% of the estate's value. On a R1 million estate, that's R35,000. This is why banks actively promote will services – it's profitable business.

If you're leaving property to beneficiaries, remember:

Transfer costs still apply even when inheriting

You can't simply move a house from one name to another without paying transfer fees

If the will stipulates selling the property, consider selling directly from the estate to avoid double transfer costs

 

The Domino Effect of Delayed Estate Winding

A common scenario in communities: the father dies and the family never winds up his estate. When the mother dies later, they want to wind up her estate but can't – because they must first complete the father's estate administration. Now they face two sets of transfer costs instead of one.

From the frontlines of community advice offices, here are the harsh realities:

Family Conflicts:

The eldest child often claims the property as theirs

Some siblings get excluded from inheritance lists

Those with means may push to sell family property, ignoring siblings who need housing

 

Cultural vs. Legal Complications:

Traditional customary law (where only males could inherit) has been superseded by constitutional law

After the case in Khayelitsha, women can now inherit under customary law

However, country law always supersedes cultural or religious law

A will isn't just about money and property. You can also specify:

How you want to be buried (earth burial vs. cremation)

Who gets your personal belongings and clothing

Who should care for minor children

Special bequests to non-family members

 

As one community worker shared: "When my mother died, I was very specific about who would receive her clothes, because it was important to me that they went to the right person based on the type of person she was."

Some people consider trusts as a will alternative, but there are two types:

Inter vivos trusts: Created while you're alive (often to manage debt issues)

Testamentary trusts: Created through your will for generational wealth transfer

 

Trusts can be beneficial for large estates meant to benefit multiple generations, but they require knowledgeable trustees and can complicate rather than simplify matters if not properly managed.

Practical Advice for Will-Making

Key Requirements:

Original document with two witnesses

Witnesses cannot be beneficiaries (this invalidates the will)

Clear, specific instructions about asset distribution

 

For estates under R250,000, you may not need an administrator

You can approach the Master's Office directly for a letter of authority

Consider community legal services during National Will Week for free drafting

 

Executor Selection:

Avoid naming your eldest child as executor – they often start believing the property belongs to them

Consider neutral parties like attorneys or trust companies

Remember: executors must follow your written wishes, regardless of family relationships

Draft a new will at no cost

Update an existing will for free

Get professional legal advice about estate planning

 

The Bottom Line

A will is one of the most important legal documents you'll ever create. It's your insurance policy against family conflict, your protection against legal complications, and your guarantee that your life's work benefits the people you choose.

Don't leave your family's future to legal formulas and government procedures. Take control, make your voice heard from beyond, and ensure your legacy reflects your values and wishes.

During National Will Week or any time of year, reach out to community legal services, attorneys, or organizations like ProBono.org for guidance on creating your will. Your family's future security starts with this one crucial document.