Estate planning is one of those tasks that is easy to postpone. There is
always a reason to leave it for later: a busy year, a pending property sale,
or simply the assumption that a will signed years ago is still good enough.
The problem is that family situations change, and South African law changes
too. When a death, illness, or property dispute happens before those changes
have been reflected in your documents, families are left dealing with
uncertainty at the worst possible time.
For families in Knysna and the wider Garden Route, where property, retirement
planning, and family trusts often form part of broader estate planning,
getting the foundations right is essential. This article looks at what
typically goes wrong in
estate planning, and why it is worth reviewing your documents.
What Estate Planning Actually Covers
Estate planning is the process of arranging your affairs so that your wishes
are dealt with clearly after your death or if you become unable to manage them
yourself.
In South Africa, this generally includes:
- A valid, up-to-date will that says clearly who inherits what.
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An understanding of how your estate will actually be wound up and
administered after your death.
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Any trusts you have created or benefit from, and how they are managed.
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Property registered in your name, in a trust, or in a company, and how
ownership will pass on.
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Possible costs your estate may face, such as estate duty and executor's
fees, and whether there is enough cash available to cover them.
Why Wills Become Outdated
A will is a snapshot of your circumstances at the time you signed it. Life
moves on, but a will does not update itself.
Common life events that can make an existing will outdated include:
- Buying or selling property, including a move to a new area.
- Marriage, divorce, or remarriage.
- The birth of children or grandchildren.
- Starting a business or acquiring business interests.
- Creating a trust or being appointed as a trustee.
- The death of a person named as an executor, guardian, or beneficiary.
Under South African law, a will must meet specific formal requirements to be
valid, including proper signing and witnessing under the Wills Act. A will
that no longer reflects your circumstances, or that was drafted incorrectly,
can lead to outcomes you did not intend.
A
periodic will review, ideally every few years or after any major life event, helps confirm that
the document still says what you want it to say.
Property and Liquidity in an Estate
For many families along the Garden Route, property is often the largest single
asset in an estate. This can include a primary residence, a holiday home, a
retirement unit, a smallholding, or rental property, sometimes held personally
and sometimes held through a trust or company.
Two issues commonly arise:
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Liquidity. An estate needs enough cash to cover costs such
as estate duty, executor's fees, and outstanding debts before assets can be
transferred. If most of the value sits in property, the estate may not have
enough liquid funds available, which can force a sale at an inconvenient
time.
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Disagreement among heirs. When several family members
inherit a jointly held property, disagreements about whether to keep, sell,
or divide it can delay the administration of the estate significantly.
Estate planning should look beyond who inherits an asset and also consider how
the estate will practically be wound up, including whether life cover or other
liquid funds are needed to cover costs.
Trusts Require Ongoing Management
Trusts are a well-established estate and asset planning tool in South Africa,
and need to be managed continuously.
Under the Trust Property Control Act, trustees have a legal duty to act with
care, in good faith, and in the interests of the beneficiaries. In practice,
this means:
- Trustees must keep proper records and hold trustee meetings.
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The trust deed should be reviewed periodically to confirm it still matches
its original purpose.
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Trust assets should be kept separate from the personal assets of trustees or
founders.
- Beneficiaries should understand what they are entitled to and when.
A trust that has been left unmanaged for years, or where the trust deed no
longer matches the family's actual circumstances, often creates confusion for
trustees and beneficiaries after a death. This is one of the more common
sources of estate disputes.
Getting Local Guidance
Estate matters are personal. They involve family relationships, memories,
financial responsibilities, and legal formalities all at once. When something
does go wrong, whether it is an unclear will, a property dispute, or questions
about how a trust should be managed, people usually need clear, practical
advice rather than a lengthy legal process.
Julie Maynard, who works within the Estates Department at MPC Attorneys in
Knysna, assists clients with the administration of deceased estates, drafting
of wills, estate planning, the formation and management of trusts, and estate
disputes and inheritance claims.
Contact her.
Conclusion
Estate planning is not a once-off task, and it is not only about having a will
in a drawer somewhere. It is an ongoing process of keeping your will, your
property arrangements, and any trusts aligned with your actual circumstances.
The families who avoid the most difficulty are usually the ones who reviewed
their documents before a crisis forced the issue, not after.
If your will has not been reviewed in several years, if your family is dealing
with a deceased estate, or if you are unsure whether your trust is still being
managed correctly, it is worth having that conversation sooner rather than
later.
Frequently Asked Questions
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Do I need to update my will after moving to a new town or
province?
Yes. While a move alone does not invalidate a will, it often coincides
with other changes, such as new property ownership, that should be
reflected in the document. A review after any major life change is
recommended.
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What happens if I die without a valid will in South Africa?
If you die without a valid will, your estate is administered according
to the rules of intestate succession under the Intestate Succession Act
81 of 1987, which sets out a fixed order of who inherits. This may not
match what you would have chosen yourself.
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Can a trust reduce estate duty in South Africa?
Trusts can play a role in estate and tax planning, but the tax and
estate duty treatment of a trust depends on how it was structured and
how it has been managed. This is a specialist area, and advice should be
obtained based on your specific trust deed and circumstances.
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How often should a will be reviewed?
There is no fixed legal requirement, but a general guideline is to
review a will every three to five years, or immediately after a
significant life event such as marriage, divorce, the birth of a child,
or a major asset purchase.
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Who is responsible for managing a trust after the founder's death?
The appointed trustees remain responsible for managing the trust
according to the trust deed and the Trust Property Control Act. The
founder's death does not automatically end the trust unless the deed
specifically provides for this.
Disclaimer: This article is the personal opinion/view of the author(s) and
does not necessarily present the views of the firm. The content is provided
for information only and should not be seen as an exact or complete
exposition of the law. Accordingly, no reliance should be placed on the
content for any reason whatsoever, and no action should be taken on the
basis thereof unless its application and accuracy have been confirmed by a
legal advisor. The firm and author(s) cannot be held liable for any
prejudice or damage resulting from action taken based on this content
without further written confirmation by the author(s).