Need to know
- Tebatso Moloko, Fiduciary Business Development Consultant at Momentum Trust, explains why a valid Will is essential to ensure your wishes - not the law - determine how your estate is distributed.
- Learn how invalid Wills and Intestate Succession can lead to delays, disputes and unintended inheritance outcomes for your loved ones.
- Discover how professional Will drafting and a comprehensive estate plan can help protect your wealth, wishes and legacy.
If you die without a Will, your estate goes through the Intestate Succession process, which also applies if your Will isn’t valid. This means the law, not you, decides who receives your assets and allocates them to surviving relatives in a specific order - which may not reflect your final wishes.
National Wills Month is a good reminder that having a valid Will that works, requires expert guidance. A professionally drafted Will, supported by a comprehensive estate plan, can help ensure your wishes are clearly set out and your loved ones and legacy are better protected.
What does it mean to die ‘intestate’ in South Africa?
The definition of dying intestate means you die without a Will. In South Africa, the Intestate Succession Act (Act 81 of 1987) determines how your assets are distributed among your surviving family members. This can lead to unintended outcomes, delays in deceased estate administration, and even disputes among family members. The Master of the High Court appoints an executor to manage the estate, and they must follow the Act strictly, regardless of verbal agreements or family expectations.
A valid Will lets you choose who inherits your assets and how your legacy is passed on, helping you protect the people and future you care about.
What makes a Will invalid?
- It isn't signed correctly
You and two witnesses must sign the end of the document together in each other's presence according to The Wills Act. If your Will has multiple pages, those same signing rules apply to every page. Missing even one required signature creates a formal defect. - The person making the Will isn’t mentally sound
You need to be at least 16 years old and clearly understand what you're doing. That means knowing what assets you own, who you're leaving them to, and what your decisions mean when you sign. - The Will was changed after signing without following the required process
Handwritten amendments, deletions, additions or alterations made on a signed Will might be ignored. The Wills Act sets out requirements for validating changes for updating Wills. - A beneficiary was involved in witnessing the Will
Under section 4A of the Wills Act, a beneficiary who witnesses your Will, signs it on your behalf, or writes it (or part of it), they lose their right to inherit anything from it. - The Will is unclear or creates conflicting instructions
Ambiguous wording doesn't necessarily make the entire Will invalid, but it can make your intentions difficult to establish and potentially lead to disputes. - The original Will can’t be found
Losing the original Will can create legal hurdles. The court will need proof that the document wasn't intentionally tossed out or destroyed.
How do deceased estates get distributed without a valid Will under Intestate Succession?
The Intestate Succession Act outlines a clear order for inheritance.
Here’s how your assets are distributed to your surviving family:
How the Intestate Succession process works in practical terms
This example highlights how the law operates in practice - and why having a will can ensure your estate is distributed according to your wishes.
Deceased’s profile
- Age: 45 years old
- Will status: Pass away unexpectedly without a Will
- Marital status: Married in community of property
- Children: Two children
- Estate value:2 million
- Assets: A house, a car and savings
Under the Intestate Succession Act:
- The spouse automatically owns half of the joint estate (R600 000).
- The remaining R600 000 is divided according to the Act.
- The spouse is entitled to the greater of R250 000 or a child’s share. A child’s share is calculated by dividing the estate among the spouse and children (R600 000 ÷ 3 = R200 000).
- Since R250 000 is greater than R200 000, the spouse receives R250 000. The remaining R350 000 is split equally between the two children (R175 000 each).
Here are the consequences
It’s important that you have your Will drafted as soon as possible to avoid Intestate Succession and many other potential challenges such as:
- Family disputes
- Unintended recipients
- Inheritance of a minor beneficiary landing at the guardian’s fund
- Minor children could potentially be placed in foster care.
- Beneficiaries may inherit less than intended.
Why should you have your Will professionally drafted and backed by an estate plan?
A Will needs to meet specific legal requirements to be valid in South Africa.
This is why professional Will-drafting matters. A professional can help ensure your Will is correctly drafted, securely stored and properly executed, so your wishes can be carried out as intended. They can also help you consider important factors, such as who should administer your estate and how your assets should be distributed, while taking into account tax, debt and other financial obligations that could erode your estate’s value. This can help preserve more of what you’ve built and ensure your beneficiaries receive their inheritance as you intended.
Your loved ones should receive their inheritance with clarity, not uncertainty. Legacy plans like the Momentum Estate Plan provide a holistic approach to estate planning, bringing together professional Will drafting, executor services, testamentary trusts and comprehensive estate cover. This helps ensure your Will is legally, executable and your estate is protected against the costs of dying.
A legacy is yours to plan, build and pass on. Dying without a valid Will can leave important decisions about your legacy in the hands of the law. Putting a professionally drafted Will and estate plan in place today, can help secure your legacy and give your loved ones greater certainty when you’re no longer around.
Ready to start an Estate Plan conversation?
Your success is yours to plan, protect and pass on. Protect what you’ve built with one simple estate planning solution to safeguard your wishes, wealth and legacy. Speak to a consultant today to get a Momentum Estate Plan.
written by
Tebatso Moloko
Fiduciary Business Development Consultant at Momentum Trust
Tebatso is an Admitted Attorney of the High Court of South Africa and a Fiduciary Business Development Consultant at Momentum Trust. He supports Momentum Trust’s fiduciary services, including Will drafting, trust administration and estate administration. Tebatso also trains financial advisers and stakeholders on fiduciary solutions and the Will drafting system, helping clients and professionals navigate estate planning with confidence and expert guidance.
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