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.