Estate planning is far more than drafting a Will. It’s the deliberate process of structuring your assets during your lifetime to ensure that they are protected, efficiently transferred, and meaningfully preserved for future generations. While death remains certain, what happens to one’s wealth afterwards should never be left to chance. Yet, many South Africans delay or neglect this crucial step, often to the detriment of their loved ones. Here’s what you need to know about estate planning in 2026—and why a well-structured plan is one of the greatest gifts you can leave behind.
Dying intestate causes unnecessary trauma: Few things are as distressing for grieving families as dealing with an estate where the deceased left no valid will. Without one, your estate will be distributed according to the formula set out in the Intestate Succession Act 81 of 1987, which determines how assets are divided among a surviving spouse, children, parents, or siblings. This often results in unintended beneficiaries inheriting, or rightful heirs receiving less than intended. Even today, countless families face prolonged emotional and financial turmoil simply because a will was never executed.
Your freedom of testation isn’t absolute: While you have the right to decide who inherits your assets, keep in mind that this freedom is not unlimited. Under South African common law, any provision that is unlawful, vague, or contrary to public policy is unenforceable. For instance, a condition requiring a beneficiary to divorce or change religion would be invalid. In addition, the Maintenance of Surviving Spouses Act gives your spouse—and now, in certain cases, life partners—the right to claim reasonable maintenance from your estate if you fail to provide adequately, while minor children hold a common-law claim for financial support.
Your marriage contract shapes your estate plan: Your matrimonial property regime is central to your estate plan because it determines what you own, what your spouse owns, and what can be bequeathed. For example, if you’re married in community of property, only 50% of the joint estate is yours to bequeath, and leaving assets to a third party could complicate matters for your surviving spouse. On the other hand, under the accrual system, your spouse may have a financial claim against your estate if her estate has grown less than yours during the marriage. Understanding these rules—and structuring your estate accordingly—ensures that your wishes remain enforceable.
Capacity matters: Mental incapacity can derail your plan: In terms of our law, if you can’t understand the nature or consequences of your actions—whether through dementia, illness, or disability—your Will may be deemed void. As such, it’s crucial to execute and review your Will while you are of sound mind. With rising rates of cognitive decline, particularly among the elderly, incapacity planning should form part of your overall strategy, including powers of attorney and advance care directives.
Death triggers a capital gain: From a tax perspective, keep in mind that death is considered a deemed disposal of all assets at market value on the date of death. This means that your estate may be liable for capital gains tax (CGT) before your heirs inherit, with the current inclusion rate for individuals being 40%, and the CGT exclusion in the year of death being R300 000. Fortunately, assets bequeathed to a surviving spouse qualify for rollover relief, thereby deferring the tax until the spouse eventually disposes of the asset.
Trusts serve a purpose—but not everyone needs one: Trusts can be valuable estate-planning vehicles, particularly for holding growth assets outside your personal estate, protecting vulnerable beneficiaries, or managing wealth across generations. However, trusts attract their own tax rates and administrative requirements and should never be established without expert guidance. That said, a testamentary trust (created in terms of your Will) remains an efficient solution for safeguarding inheritances left to minor children. Since 2023, the Financial Intelligence Centre and SARS have tightened compliance and reporting obligations for trusts, including mandatory beneficial ownership disclosure—so if you already have one, be sure that it meets the latest transparency and disclosure standards.
Your debts don’t die with you: Remember that debt forms part of your estate and must be settled before your heirs can inherit. This means that if your estate lacks sufficient cash, your executor may have to realise assets—sometimes those intended for loved ones—to cover liabilities, taxes, and costs. In severe cases, the estate may even be declared insolvent, meaning that creditors are paid before beneficiaries receive anything.
Retirement funds don’t automatically form part of your estate: Retirement fund benefits are excluded from your estate for estate duty purposes and are protected from creditors. But it’s important to remember that these benefits are distributed according to Section 37C of the Pension Funds Act, which gives trustees the discretion to allocate funds among your financial dependants and nominated beneficiaries based on their needs and relationships to you. This means that your nominations serve as a guideline, not a guarantee.
Your Will is just one part of the plan: While your Will is central to your estate plan, it’s only one piece of a larger puzzle that includes ownership structures, beneficiary nominations, trusts, liquidity, and tax strategy. Increasingly, digital assets—such as online accounts, intellectual property, and cryptocurrencies—also need to be documented and assigned, and a comprehensive estate plan should ensure that your digital and physical assets are dealt with seamlessly.
Solvency and liquidity are not the same thing: An estate may be solvent—with assets exceeding liabilities—yet still lack liquidity to cover immediate expenses such as executor’s fees, taxes, and debt repayments. Illiquid estates often force executors to sell properties or investments at inopportune times, undermining long-term wealth preservation. According to fiduciary specialists, liquidity shortfalls are the number one cause of delays in winding up South African estates, so be sure to do your liquidity planning carefully.
Estate duty still applies: The estate duty abatement remains set at R3.5 million per individual, with duty levied at 20% on the first R30 million of dutiable assets and 25% on any value above that threshold. Bequests to a surviving spouse are fully deductible, and any unused portion of the abatement may be transferred to the spouse’s estate. While these provisions have remained unchanged since 2022, the steady appreciation of property and investment values means that an increasing number of estates now fall within the dutiable range, reinforcing the importance of proactive estate planning.
Offshore assets require cross-border coordination: If you own property or investments outside South Africa, ensure that your estate plan complies with both local and foreign succession and tax laws, keeping in mind that some countries impose inheritance or death duties regardless of where you reside. In such cases, separate Wills for each jurisdiction—coordinated by fiduciary specialists—are advisable to prevent administrative conflicts.
Estate planning is not a once-off event but an ongoing discipline that must adapt as your life, your wealth, and the legal landscape evolve. The core principles remain constant—draft a valid will, ensure sufficient liquidity, understand the tax consequences, and safeguard vulnerable beneficiaries—but their application requires regular review. Ultimately, a thoughtfully structured estate plan is more than a set of legal documents; it is a lasting act of stewardship. It preserves what you have built, protects the people you love, and ensures that your legacy is passed on with clarity, dignity, and purpose.
Have a wonderful day.
Sue
