Making a Will

Description:
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 are 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, must be in a reasonable state of mind and remember what you own.

For a will to be valid, you must make sure that:

  • The will is in writing.
  • Two people older than 14 years of age witness the making of the will (these witnesses cannot 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.

DYING WITHOUT A WILL

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 rules state that:

  • A married person's property is shared equally by their spouse and their children.
  • The property is divided between other family members if there is no spouse or children
  • If there are no blood relatives then the property is given to the government.

Different rules apply under customary law but this results in a situation that is unfair to the wife.
Instructions:
For more information on wills and deceased estates, visit the Department of Justice website.
Provided by:
Government Body:
Department of Justice and Constitutional Development (National)
(The Government of South Africa)
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The content on this page was last updated on 28 August 2013