When you die, your estate is divided between your family or the people that you want to have inherit from you. The estate consists of your personal property and possessions, as well as any money or other assets owed by you.

Who your property is passed on to depends on whether you have a valid will or not. If you have a valid will then the property is divided according to your wishes. If you die without a will (called intestate) then your property will be divided up amongst your immediate family according to the laws of intestate succession.

Creating a valid will

If you're older than 16, you can make a will stating who you want your property to go to when you die. For your will to be valid it needs to be made in the proper way. You also need to be mentally competent; this means that you must be able to understand the consequences of creating a will, you must be in a reasonable state of mind and remember what you own. For your will to be valid it needs to be drawn up correctly.

You’ll need to be 16 years or older and make sure that:

• You’re mentally competent and that you understand the consequences of creating a will.
• The will is in writing.
• Two people older than 14 years of age witness the making of the will (these witnesses can’t be beneficiaries of the will).
• You have initialled every page of the will and signed the last page, in the presence of the witnesses.
• The witnesses have initialled and signed the will.

In your will you can:

• Appoint an executor.
• Divide up your property.

An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will. The executor also settles your outstanding debts. If you don't choose an executor, the court will appoint someone to be the executor; this is usually a family member.

You can get a lawyer to help you to draw up a will or you can get an easy-to-complete will form from a stationary shop.

Need help drafting a will? Get tips and legal guidance on how to make a start. 

If you don't have a valid will when you die, your property is divided according to the rules set out by the law. These provisions are generally fair and ensure your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationships.

Some problems may arise if you die without leaving a will.

This can include:

• Your assets not being left to the person of your choice.
• It can take longer to have an executor appointed.
• The executor who’s appointed may be somebody you may not have preferred.
• There could be extra and unnecessary costs.
• There could be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets.

Different rules apply under customary law.

National Wills Week 2020

The Law Society of South Africa is hosting its National Wills Week from 26 to 30 October 2020. If you don't have a will in place or simply can't afford a lawyer, National Wills Week offers you an opportunity to have a will drafted for free.

You can book an appointment with a participating lawyer nearest to you.

If you have an appointment with an attorney during National Wills Week, please take the following with you:

• Your identity document (ID) and your spouse’s ID if you have a joint will.
• A list of what you own and who must get it (including specific personal items that you intend leaving to specific people).