Christel Botha, Fiduciary Services Manager at Alexforbes

Life is unpredictable. While we cannot control when or how it will end, we can control how our loved ones are cared for after we are gone. Too often, South Africans neglect to take the essential step of drafting a valid will. The consequences of this can leave families burdened with debt, conflict and unnecessary complications when it comes to distributing assets.

The reality in South Africa

Shockingly, more than 70% of South Africans do not have a will. Without one, you forfeit your constitutional right to freedom of testation, the right to decide how your assets are distributed after death. Instead, the law takes over through a process known as intestate succession. In simple terms, this means that the law, not you, decides who inherits your estate.

What happens when you die without a will?

Dying intestate not only strips you of your freedom of choice, but it also creates avoidable problems for your loved ones. Some of the most common complications include:

• Executor appointments: The Master of the High Court appoints an executor, not necessarily a family member, which can lead to delays and disputes.
• Family disputes: If heirs are missing, uncooperative or in conflict, the process becomes lengthy and complex.
• Rigid rules: Intestate succession follows strict legal rules. Even if the results seem unfair, they cannot be changed.
• Financial hardship: A surviving spouse may only receive the same share as a child, which may be inadequate to cover household or childcare needs.

The result? Families can be left vulnerable, financially insecure and tied up in legal battles, precisely what most people would want to avoid.

The hidden risk: Minor children

One of the biggest challenges arises when a deceased parent leaves behind minor children. 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.

While this system is designed to protect children, in practice it often creates new problems:

• The fund offers limited investment growth.
• Payouts are made only quarterly, delaying access to essential money.
• Expenses such as school fees, medical costs and daily living needs are often left unpaid while the system catches up.

This means that children who should be supported by their inheritance may face unnecessary financial struggles.

A better solution: Testamentary trusts

Fortunately, there is a way to protect your children and ensure their inheritance works for them. The answer lies in drafting a valid will that creates a testamentary trust.

Unlike the guardian’s fund, a testamentary trust allows you to:

• Appoint trustees of your choice, people you know and trust.
• Ensure that funds are invested and managed for growth.
• Provide direct financial support for your children’s education, healthcare and well-being.

This gives parents peace of mind that their children will be cared for in a practical and sustainable way.

Other factors people often forget

1. Blended families

With divorce and remarriage common in South Africa, intestate succession laws can create major tension. Stepchildren do not automatically inherit unless they are legally adopted. This can lead to disputes between biological children and stepchildren, often resulting in bitter family conflicts.

2. Business ownership

Many South Africans own small or family-run businesses. Without a will, there is no clear direction on who should take over the business or how shares are distributed. This uncertainty can threaten jobs, disrupt operations and put employees’ livelihoods at risk.

3. Digital assets

Today, assets extend beyond property and savings accounts. Email accounts, social media, online investments and even cryptocurrency are part of modern estates. Without instructions in a will, families may struggle to access or even identify these digital assets.

4. Tax and estate duties

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.

5. The importance of updating your will

A will is not a once-off task. 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.

The message is clear: dying without a valid will creates avoidable complications, leaving your loved ones vulnerable. A will is one of the most important documents you will ever sign, as it determines the legacy you leave behind.

Take the time to consult a qualified professional who can help you draft a valid will and set up the right structures. 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.

ENDS