Estate Planning

Unlock your financial legacy

Estate planning is critical to safeguard accumulated wealth for the future of our loved ones. National Wills Month, observed in September each year, is about much more than just drafting a last will and testament — it’s about orchestrating a seamless transfer of financial legacies in accordance with your wishes to ensure peace of mind and financial security for those left behind in the event of your death. No longer confined to the affluent elite, it has emerged as a pressing concern for individuals from all walks of life, to ensure generational financial harmony. 

In the absence of proper estate planning you risk family disputes or having assets being bequeathed to the state instead of selected beneficiaries; dependents can lose financial security and face excessive estate taxes. Without proper documentation, administrative difficulties can result in delayed payouts. 

According to Chief Executive of the Fiduciary Institute of Southern Africa (FISA) Louis van Vuren, drafting a legally valid will is the end result of your estate plan, not the beginning. “It is about planning and arrangement of your assets and liabilities to get the most out of them during your lifetime — and for your next of kin after death,” he explains. 

Identify your beneficiaries 

The first step is to identify your spouse — or spouses — because the Customary Marriage Act makes provision for polygamy, and each spouse has an automatic claim on the estate under South African law. The exact nature of this claim depends on the marital property regime. If you are married in community of property, spouses are co-owners of marital assets. With accrual marriages, the accrual amount must settle. “That, to a large extent, determines what you can and cannot do,” he says. 

While South African law allows freedom of testation (asset distribution), in practice spousal rights limit this. The Maintenance of Surviving Spouses Act grants claims against an estate if the survivor would be left without sufficient means, and due to an obscure provision in the Wills Act, someone is still legally considered a spouse for three months following the finalisation of a divorce. To change this, an updated will is needed. 

Another thing to consider is any minor children, and the resources necessary to care for them until they reach the age of majority. Leaving everything directly to the surviving spouse may seem like the easiest option, but can disinherit non-mutual children, so it is best to ensure specific provisions for children or other direct dependents. 

A stocktake of assets 

It is important to understand what comprises the total estate in question. This includes property, investments, insurance, retirement funds and other assets. One should then review whose interests should be provided for through estate distribution. Here, documentation is key — every account and every investment at every institution — and updated on a regular basis. 

Some assets, such as retirement annuities and living annuities, may fall outside the estate, but should still be considered when drafting a plan. Your will covers general assets, but you should specifically name beneficiaries for pensions, insurance policies, investments and more. 

Drafting a will and selecting an executor

Van Vuren suggests using a lawyer to ensure your will is legally valid, and to review it every two years or after major life events to ensure it remains current. “Estate planning is an ongoing process,” he says. While an attorney or bank can keep a copy of the will, it is prudent to also keep a separate copy in a safe place and inform family members and the executors of how to access it. This can be accompanied by a file with documents listing pertinent assets for the executor. 

The executor of an estate should be someone who is not just trustworthy, but also has the necessary expertise — including patience, time and the mental and physical bandwidth — to wind up and settle the estate. An immediate family member might not have the emotional resources in the aftermath of losing a loved one. Fortunately, there are professionals at hand to assist. Van Vuren says FISA awards the designation Fiduciary Practitioner of South Africa (FPSA) to members who have successfully completed the Advanced Diploma in Estate and Trust Administration at the University of the Free State.

Hidden costs, common pitfalls and other considerations

Thorough estate planning should also consider South Africa’s legal requirements around inheritance and taxes. The country does not have “forced heirship”, meaning even close relatives can be disinherited, with the exception of spouses. Taxation, in turn, is dependent on the heir’s relation to the deceased.  Consultation with an expert on these matters is the best way to ensure that the estate is structured in the best interest of those left behind. 

Wrapping up an estate is not an overnight process — it can take months or even years to be finalised. For this reason, Van Vuren recommends having an emergency fund to cover three to six months of income for both spouses, should one pass away. He says there are investments specifically designed for this purpose. 

Leaving a lasting legacy 

Estate planning takes time and effort. Van Vuren warns not to leave this important process for your final days. Crafting a thoughtful approach aligned with your wishes and family’s needs offers peace of mind — both while you are present and for your loved ones after you are gone. With proper diligence and advice from professionals, you can gain confidence that your legacy is secure. — Sandra Roberts

Your will and guardianship

Most people think death only comes when you are much older. But more often than we care to acknowledge, it comes like a thief in the night and not when you are ready.

If you die without a will, you leave behind chaos, uncertainty and potential drama.

If you have any assets such as a house, furniture, car, savings or investments, the responsible thing to do is to ensure you have a will in place. If you’re a parent, however, it should be a non-negotiable!

As a parent, we don’t want to think about the prospect of leaving our children behind, but a sobering statistic from 2020 revealed there are nearly three million orphans in South Africa — so it’s best to be prepared.

Guardians for your children

If you and your spouse pass away without a will, you leave no direction for a preferred guardian for your minor children, so the state will appoint guardians of its choice. 

Another risk of not having a will is that after winding up your estate, what is left of your assets will go to the state’s Guardian’s Fund. Your children’s state-appointed guardians will have to claim against the fund to cover your kids’ expenses. This is not ideal as claims against the Guardian’s Fund can be laborious, plus it has been plagued by fraudulent cases over the last few years. Having a will would allow you to provide for a testamentary trust to take care of your children’s inheritance as you intended.

If you have children, passing away without a last will and testament should not be an option for you, and you should think clearly about who you’d want to care for your children in your absence. The High Court isn’t legally bound by your will to appoint your preferred guardians, but as you will see in the following example, your nomination has a great influence on the final decision of the courts. 

The High Court and guardians

In a recent case in the Cape High Court, the guardianship of two young, orphaned brothers was finally awarded to their parent’s preferred guardians after the courts had initially appointed the maternal uncle and aunt as their guardians — which was not the wish of their parents.

The boys’ father and mother had passed away in 2018 and 2022 respectively. 

In the mother’s will, she had nominated close friends to be the boys’ guardians.

The social worker assigned to oversee the boys’ wellbeing had no sight of the will and recommended to the Children’s Court that the boys should be temporarily placed with safety parents, namely their maternal uncle and aunt, much to the distress of the family friends, who fully expected to care for them.

The maternal uncle and aunt were not in a strong financial position to care for the children, and after one of the boys was injured playing rugby and had subsequent medical aid issues, the parents’ friends approached the High Court asking for a ruling appointing them as the legal guardians and citing the mother’s wishes in her will.

The court ruled in their favour and the boys were finally united with their close family friends, fulfilling their mother’s last wishes.

Wills Month – no time like the present

The second week of September is National Wills Week, but Capital Legacy promotes will drafting every week and labels September as Wills Month. So, if you don’t have a will in place, don’t wait for death to sneak up on you unprepared; there’s no better time than now to get your will in order.

Save your loved ones from the drama and heartache of passing away without a will. Contact Capital Legacy at www.capitallegacy.co.za to draft your last will and testament, or speak to your financial advisor today.

What happens to your digital legacy when you’re gone?

The world we live in is increasingly digital, and more personal and financial information exists exclusively online than ever before. This presents new challenges when it comes to modern estate planning. According to digital rights advisor and Director of OpenUp Gabriella Razzano, your digital legacy is an important but often overlooked part of the legacy that you leave behind in death: “Remember that in today’s world, your digital identity is as much a part of your identity as anything else.” 

Most people do not really consider what would happen to their Facebook profile or Apple ID when they die. They also don’t consider how to ensure that loved ones can access important documents that may be stored in the cloud. 

And while there are no clear-cut answers to what should be done, Razzano says these questions are worth discussing with loved ones while one is still alive: “You’ve got such powerful rights in terms of your will. And so, just in practice, I know a lot of people use it as an opportunity to dictate their wishes about their social media platforms, for instance. But they haven’t really thought too much about how their digital identity intersects with personal information.” 

While enacting a digital estate plan rests significantly on online platforms and financial institutions, there are steps that can be taken to preserve (or erase) your digital history and decide on the online legacy you leave. A will and the instructions left behind for loved ones may be your last chance to to influence the world you no longer inhabit.

The digital footprint you leave behind 

Your digital legacy encompasses your broader online presence and identity, including social media profiles. According to a 2019 study from the University of Oxford Internet Institute, the dead will outnumber the living on Facebook within 50 years! To avoid these “zombie accounts” that can haunt loved ones, Facebook allows for the complete deletion of accounts, and also for the memorialisation of profiles of people who have died. 

According to Facebook, memorialised profiles can act as a place for friends and family to gather and share memories after a person has passed away. Memorialised profiles differ from regular profiles in a number of ways. The word “remembering” will be shown alongside the person’s name on their profile, and depending on the privacy settings of the profile, friends can still share memories on the memorialised timeline. Content the person shared in life, such as photos or posts, remain visible to the audience it was shared with. To avoid undue distress to those left behind, memorialised profiles don’t appear in suggestions for “people you may know” or birthday reminders. Nobody can log into the account of a memorialised profile.

For a memorialised profile to be changed or updated in any way, a legacy contact should be appointed while the person is still alive. The Facebook Resource Centre explains that a legacy contact is a person chosen  by the account holder to look after the profile if it is memorialised. A legacy contact can accept friend requests on behalf of a memorialised profile, change the profile picture and cover photo.

Avani Singh is a media law and information rights lawyer. She says maintaining agency over your legacy is possible, but stresses that a conversation with those closest to you will be helpful. “Your continued online presence may be distressing, and your family may wish to have your social media accounts removed completely, should the circumstances of the death prove difficult to handle,” she explains. “This agency is not just meaningful to individuals, but also for family members.” 

In addition to nominating a legacy contact where available, Singh also encourages people to consider appointing someone with the authority to close accounts, or leave a record of passwords that can be accessed after death. 

“Remember that digital platforms like social media accounts contain extensive personal information about who we are, our preferences and interests, the people we engaged with and the places we’ve been,” she cautions, adding that this information can be used for fraudulent purposes in the event that a person dies. “A common example of this is identity theft. A person’s identity can be made use of to commit nefarious acts unbeknown to the family and under false pretences.” 

The right to die or digital immortality 

Your online presence is something that remains after you are gone, and red tape coupled with a lack of planning can remove the agency of the deceased and their loved ones. Razzano says with rapid technological advancements, the full implications of losing control of your online presence may not be evident yet. “Having your information publicly available can have a lot of weird long-term impacts that you never foresee and don’t have control over,” she warns. 

Advances in Artificial Intelligence are raising new questions about digital immortality and the “right to die”. Some companies now offer services that use recordings and writings of a deceased loved one to create a digital “replica” that mimics their personality and speech patterns. Services already exist that use people’s images to create realistic videos, and “deep fake” video technologies are becoming more sophisticated. Going forward, it may be possible to use AI to create the likeness of people, alive or dead, but again, these may be used for commercial or fraudulent purposes.

Your digital assets 

Managing digital financial and legal records is also crucial for estate planning. Digital assets include online financial accounts, documents stored in the cloud, and virtual property such as cryptocurrency or NFTs. The institutions that hold these assets may be based both within the country and abroad. 

From online banking to tax documents stored in the cloud, digital-only assets can be difficult for executors or next of kin to access. Razzano recommends being proactive with sharing logins and passwords for important accounts through a will or estate attorney. 

Cryptocurrencies and non-fungible tokens (NFTs) add further complexity. Extra care should be taken to ensure details about any NFTs are documented, since they can be lost forever if information like wallet passwords is not passed on. 

A lot of information that may be needed on your death is only in digital format, available from institutions. Your banking records, insurance policies, tax information, more and more exists only in digital form. Getting this information may prove problematic for loved ones and executors. While the Master’s Office at the Department of Justice and Constitutional Development can grant the executor permission to access financial records, that executor still needs to know where to look for those records. 

Ensuring that you have been diligent about recording institutional and account information helps executors access and manage all digital assets. Razzano advises the use of a password manager or password keeper, a technological tool that helps internet users create, save, manage and use passwords across different online sites and accounts: “One of the biggest security risks is using the same password for multiple sites, because if that one is leaked it can easily be used to breach all your other accounts. And when it comes to passwords, more complex is better. So a password keeper is good cyber practice, even in life.” 

The password to this tool can then be shared as an appendix to your will, although Razzano says it is important to remember to keep the password current! Singh says that while many platforms do have processes in place to access or remove accounts after death and may be helpful in doing so, the process can also be complex to manoeuvre and information may be difficult to find. It’s important to recognise executors and loved ones may still encounter roadblocks.

Into the future

Managing digital legacies remains a complex frontier in estate planning. Being proactive is key for financial accounts and records. Share login information securely, provide password lists, and give written instructions addressing digital assets.  Because laws and policies often lag behind technological advances, individuals must be deliberate in protecting digital assets and shaping their legacy. 

A document with clear instructions for handling social media, financial records, and other digital accounts after death can be added to an existing will and updated as needed. It is also wise to anticipate the longer-term implications of an online presence in all its facets. A person’s digital identity can have a profound impact on their legacy — both in life and beyond. — Sandra Roberts

Preserving luxury legacies

The process of estate planning is a multi-faceted journey steeped in personal reflection and filled with legal intricacies. The planning, which includes identifying heirs, listing assets and reviewing accounts, as well as considerations of estate taxes and debts, is critical; even more so for individuals who hold high-value assets. High-end collections such as art, antiques, jewellery, classic cars and wine can carry enormous value but can be tricky to appraise and even more tricky to divide up. Estate plans often use trusts or limited liability companies to properly manage coveted collections.

According to Alfred Bester, Director and Fiduciary Specialist at Legacy Fiduciary Services, individuals with high-value assets face additional complexities when ensuring that their assets will be rightfully distributed after their death: “Estate planning is a wide, expansive exercise in arranging your affairs relating to the assets and liabilities of your estate during your lifetime. This is especially pertinent to high-net-worth individuals who may have privately-owned enterprises or family businesses, and may invariably also own high-value assets like art, collections or other luxury assets.”  

Succession planning and buy-sell agreements are important for passing down business ownership smoothly. Experts caution that a lack of succession planning causes many family businesses to fail after inheritance disputes.

According to Bester, the process of estate planning typically involves setting up an appropriate structure to safeguard assets, and in this context may include the formation of trusts and companies, with the latter specifically designed to isolate and contain risk.

Clearing the confusion to avoid pitfalls

Estate planning is often misunderstood, Bester explains, especially when dealing with high-value assets. For affluent individuals, the process extends far beyond merely drafting a will; it involves an intricate assessment of various asset classes and intense strategizing on how best to manage and protect those assets. 

It requires considering not only what an individual owns, but also how to incorporate those possessions into an overarching plan that aligns with a person’s goals and wishes, while taking legal considerations into account. “The most common mistake when attending to estate planning is not to consider each asset, or class of asset, and how best to deal with it as part of your overall estate planning,” says Bester. 

Especially in the case of high-net-worth individuals, merely drafting a will is not adequate estate planning. “The estate planning process as explained here is ultimately tied together at the end of the process with a suitable will which is in synchrony with the estate plan.”

Experts agree that another important aspect of managing valuable assets for your estate is tracking. Personal property items are easily “lost”. They may be stowed away in a storage locker, forgotten in the attic of a house that is sold to strangers, appropriated by a greedy relative or misplaced in a number or other ways. This tracking also touches on issues of security and insurance of the assets in question, and proper security measures should also form a part of estate planning. These could include safes, safety deposit boxes, alarms or other security measures, depending on the assets in question. 

Transportable valuables also present greater risks, both in terms of theft and of loss during a disaster or a fire. It is also important to regularly update loved ones and the legal team overseeing the estate to ensure that the assignment and transfer of high-value assets go smoothly. 

Death, taxes and the law 

In South Africa, various ways to deal with high-value assets during estate planning exist. Bester cautions that each method, however, comes with its own legal considerations: “There are many technical aspects that one must be aware of when planning an estate with high-value assets in South Africa. The legislation that comes into play is invariably the Income Tax Act and the Estate Duty Act, among others, which can result in transactional costs when an estate plan is implemented.” 

Bester says proper estate planning aims to reduce or postpone these costs, which is also important when considering the legal status of intended beneficiaries, such as minor children or persons with disabilities. It also ensures that assets are shielded for beneficiaries in cases of divorce, relationship breakdowns or failed business ventures. 

Tax considerations should also form a vital aspect of estate planning. While some valuable possessions might offer tax benefits, different asset types may instead present as tax liabilities.

Understanding these differences is crucial, Bester explains: “One of the benefits of holding art and objects of art, including antiques and other collectables, is that such assets are not subject to Capital Gains Tax upon your death as these are deemed to be ‘personal use’ assets. There is also a possibility of avoiding estate duty on the value of your art collection in the event of your death, provided that such assets have been lent under a Notarial Deed to an institution, board or body which is exempt from income tax in terms of the provisions of the Income Tax Act for a period of not less than 30 years, and the deceased died during such a period. “In South Africa, estate duty is a tax levied on the net value of a deceased person’s estate. High-value assets such as art collections, antiques and luxury real estate are subject to this tax. According to the South African Revenue Service (SARS), the current rate is 20% for estates valued up to R30 million and 25% for those above R30 million, with the first R3.5 million exempt.

Safeguard your wealth and your memory

Estate planning is a dynamic and complex process; an ongoing strategy that must adapt to changes in both personal circumstances and the legal landscape. Bester says navigating the nuances of laws related to trusts, taxation and other financial matters necessitates the guidance of an experienced planner.

 “At Legacy Fiduciary Services we are well versed with the law and the ever-evolving changes, especially the recent changes to the Income Tax Act and Trust Property Control Act relating to trust.” 

Though sentimental value matters when planning estates, the focus lies more on the financial value of assets. Proper distribution of high-value assets takes time and expertise. Working with estate planning attorneys and financial advisors helps ensure that your loved ones are taken care of, as this is a process that requires attention to detail, a personalised plan and a nuanced approach. 

By attending to each aspect with care, individuals can ensure they leave a legacy that not only safeguards their wealth and the financial security of their loved ones but also provides an ongoing, meaningful connection for generations to come. — Wessel Krige

What about the children?

Proud parents, surrounded by loved ones celebrating the birth of a child, often appoint an honoured family member or close friend as a godparent — a cherished role model to support and guide the child and act as a secondary parental figure. The common assumption is also that this godparent will assume parental duties in the event that the parents die. Without proper guardianship provisions, however, this lofty title remains just that. 

Including guardianship provisions in estate planning and having this clearly defined in the last will and testament is crucial to protect minor children if you pass away before they reach adulthood. Naming a guardian provides legal authority to care for your children and make important decisions on their behalf. There are a few considerations when planning guardianship.

Parental rights and nominated guardians 

It’s important to remember that surviving parents automatically assume responsibility for children in the event of the other parent’s death. Should both parents pass away at the same time, however, or the surviving parent is not in a position to care for the child, having an appointed guardian is  essential. Guardianship and financial provision in blended families and with polygamous households can be particularly complex, and it is essential to consider how circumstances may change should parents and stepparents remarry or circumstances change. 

When selecting a guardian, Family Law Attorney Naseema Hassan has the following advice: “Look at what good examples they are as human beings, and also take their parenting skills into consideration.” 

Family and friends should be evaluated to see who shares the priorities and values of the parents, and to see who has an existing meaningful relationship with the children. Good guardians should share the same religious, spiritual and cultural values as the family, as well as their preferred schooling approach and financial discipline.   

Where they live and their ability to provide stability should also be at the forefront of decision making; ideally, losing parents should not uproot children from their siblings, remaining family, friends or schools. Financial stability, good health, patience and integrity are also important characteristics to look for in potential guardians. “You want the guardians to be able to treat your children with kindness and empathy.” 

Guardianship should always be discussed with candidates before they are nominated. It is important to confirm that they fully grasp the seriousness of the decision and be completely sure that this is a duty they are willing to fulfil. 

Hassan advises discussing values and guidelines for childcare with the nominated guardian before you pass away, but also cautions that parents must remember that it is impossible to control the decisions of others from beyond the grave. While not legally binding, these instructions can, however, provide guidance aligned with parental values.

Hassam recalls one case she worked on, where the mother had died in a car crash. “The wife’s new husband, his child and her two children had become a family.” The children’s father was homeless and struggled with substance abuse. In that case, the step-father was awarded guardianship because that was in the best interests of the children, and provided an easier alternative to adoption, which would have caused additional trauma after the loss of their mother. 

Always have a backup plan!

In the event that the first nominated guardian cannot serve, it is good to name at least one alternative. “Consider a co-guardian, or a second or even third person in the event that the primary guardian’s circumstances change,” Hassan says. And remember to also inform alternates of your intentions! Share your priorities to aid their preparation if needed.

Should no guardian be specified or guardians fall away, the executor may identify guardians for the interim, or the family will care for children.  Any plans should always consider the stability and emotional security of the children.  It is best to plan for all circumstances so that they are looked after. 

Financial provision for children

Establish a testamentary trust in your will to structure finances.  With a trust, you can decide at what age your child or children can access the funds.  It also provides for your children’s needs: housing, food, clothing, medical costs, education and extracurricular activities. Sufficiently fund the trust to fully provide through to adulthood and define parameters for trustees on accessing funds.  

The guardian can serve as trustee, or the parent may select someone else completely. “People often appoint friends, an accountant or an attorney,” Hassan explains. “I am often appointed as trustee to testamentary trusts of colleagues or friends.” 

Odd numbers like three trustees facilitate decision-making. Many trustees can slow decision making. Outline trustee powers and trust purposes clearly, to minimise potential guardian-trustee conflicts over money management.
— Sandra Roberts

Make a difference where it matters

In a world often driven by material pursuits, the act of giving to others offers a profound sense of fulfilment and purpose. The choice to contribute to a charitable cause through a will is not just a financial decision, but a deeply personal one. It’s a sentiment that extends beyond tax benefits or legal considerations and taps into the very core of personal values and human connections. 

Head of Financial Planning, Advice and Product Development at Absa Private Wealth Banking, Navin Ramparsad, says this decision often reflects an individual’s passion for community and their desire to leave a lasting legacy. “Charitable donations allow people to make a difference by contributing and giving back to society,” he explains. “Donating like this not only makes the donor feel good but also strengthens and builds communities.”  

Ramparsad says there are a few considerations for those interested in including their favourite charities or charitable causes in their estate planning, and various methods exist to do so — including an outright bequest, a direct donation or setting up a trust. 

He says that this generosity often starts in life and extends after people die: “During a person’s lifetime, they can donate directly to an individual, a trust, a company or a charitable institution, or they can set up a public benefit organisation (PBO) for a specific charity or cause.” 

The South African Revenue Service (SARS) defines PBOs as entities that conduct activities for the greater good of the public. These activities encompass areas such as healthcare, education, environmental conservation, animal welfare, the promotion of arts and culture and the advocacy for human rights.

The laws that govern giving 

South Africa’s legal frameworks around charitable giving can be complex, but Ramparsad says they are designed to encourage and facilitate generosity: “A donation is a gratuitous disposal of property or any gratuitous waiver of a right. The Income Tax Act (ITA) and the Estate Duty Act are key pieces of legislation that inform charitable donations. Non-profit organisations and trusts that want to be registered as PBOs must do so in terms of Section 30 of the ITA, and donations to registered PBOs are not subject to donations tax or estate duty.”

But, he cautions, this may be subject to certain conditions. Charitable giving through wills is not without its challenges, but with thoughtful planning, Ramparsad says these are not insurmountable: “It is important to remember that there may be certain costs associated with giving effect to the bequest which the estate may have to pay for. Some of the more common challenges revolve around deciding which organisation to benefit, and once decided, how to assist the organisation. Ensuring that the PBO meets the ITA criteria is also an important aspect of the due diligence in choosing a charity.” 

Selecting the right charitable organisation is not merely about aligning with a cause but also involves understanding the integrity and effectiveness of the organisation in question. “A person needs to reflect on what is important to him or her and decide what charitable cause to support, of course, but also take the reputation, operational ability and processes of the charitable organisation into consideration,” Ramparsad advises. 

He adds that trust is paramount in charitable giving, and it’s vital to have mechanisms to ensure transparency: “It is also important to ensure that the chosen charitable organisation is correctly identified and described in the will to ensure enforceability. Regular reviews of the will are very important. Upon death, an executor assumes responsibility for the administration of the estate and is responsible for ensuring that the bequests of the testator are given effect to, and these need to be clearly defined.”

In an age where personal connection and compassion are more vital than ever, charitable giving through wills offers a profound way to leave a legacy that echoes beyond a lifetime. It’s not just a matter of wealth but a manifestation of values, a testament to what an individual holds dear, and a tangible way to foster positive change in the world.
— Wessel Krige