South African Law on Inheritance

When a person dies what are the different ways their money and property (their estate) can be passed on to others?

A person’s estate can be passed on to others in three main ways:

  1. Through a valid will (testate succession);
  2. Without a will (intestate succession);
  3. Through a combination of both (partial intestacy).
If I die intestate (without a will), will my estate automatically be distributed according the Islamic laws of inheritance?

No, if you die without a will in South Africa, your estate will not automatically be distributed according to Islamic inheritance laws. Instead, it will be distributed according to South African intestate succession laws.

If I die without a will, how will my estate be distributed if I am survived by my wife, my son, my daughter and my father?

According to South African intestate law, if you die without a will and are survived by your wife, son, daughter, and father:

  • Your wife would inherit R250,000 or a child’s share, whichever is greater;
  • The remaining estate would be divided equally among your son, and daughter.
  • Your father would not inherit in this scenario.
Will my sons and daughters inherit equally if I die intestate?

Yes, under South African intestate law, your sons and daughters will inherit equally if you die without a will.

Will my child born out of wedlock inherit as an heir if I die without a will?

Yes, in South African law, children born out of wedlock have the same inheritance rights as children born within marriage if you die intestate.

If I die without a will, will my adopted child inherit equally with my other children?

Yes, in South African law, legally adopted children have the same inheritance rights as biological children if you die intestate.

If I was married to my wife in community of property and I die intestate, how much will my wife be entitled to inherit from my estate according to South African intestate laws?

If you were married in community of property, your wife would already own half of the joint estate. From your half of the joint estate, she would inherit either R250,000 or a child’s share, whichever is greater.

In South African law am I obliged to include Islamic inheritance law in my will?

No, South African law does not oblige you to include Islamic inheritance law in your will. You have the freedom to choose how you want your estate to be distributed.

What formalities do I have to comply with to ensure my will is valid in terms of South African law?

To ensure your will is valid in South African law:

    • It must be in writing;
    • You must sign it at the end;
    • Two competent witnesses must sign in your presence and each other’s presence;
    • If the will is more than one page, you and the witnesses must sign each page.
Can my future heirs be witnesses to my will?

It’s not advisable for future heirs to be witnesses to your will. While it doesn’t invalidate the will, it could disqualify them from inheriting under the will.

Do I need to appoint an executor for my estate in my will?

Yes, you should appoint an executor in your will. You can appoint any competent person as an executor in your will, including family members, friends, or professionals like lawyers or accountants.

How do I include Islamic inheritance law in my will?

To include Islamic inheritance law in your will, you can:

    • State your intention to have your estate distributed according to Islamic law;
    • If possible specify the shares for each heir as per Islamic law

Consider consulting an Islamic scholar and a lawyer to ensure correct application

How does the Islamic concept of Wasiyya (bequest) work within South African law?

Wasiyya allows you to bequeath up to one-third of your estate to non-heirs or to adjust the shares of heirs. In South African law, this can be incorporated into your will, by stipulating clearly how much of your estate you wish to bequeath and to whom.

Who will determine my Islamic law heirs on my death?

Your executor, potentially with the help of an Islamic scholar or expert in Islamic inheritance law, will determine your Islamic law heirs. They will draw up what is referred to as a Distribution Certificate setting out your heirs according to Islamic law.

My wife is only entitled to 1/8th of my estate in terms of Islamic law, if she is unable to support herself after my death can she claim more from my estate before it is distributed to the my other Islamic law heirs?

Yes, under South African Law she in entitled to claim for maintenance for herself in terms of the Maintenance of Surviving Spouse Act. Your wife will have to contact your executor after your death and give him/her details about her financial situation. Her claim should be for a “reasonable” amount based on her needs and the lifestyle you shared while married.

Important things to remember:

    • This claim is separate from Islamic inheritance rules;
    • It doesn’t change your Islamic duties, but helps ensure your wife isn’t left in need;
    • The claim is paid before your estate is divided among heirs;
    • Your wife should get legal advice to understand her rights fully.
After I die to whom must my executor report my estate?

Your executor must report your estate to the Master of the High Court in the area where you were living at the time of your death.

Which documents must my executor include when reporting my death to the Master's office ?

Your executor should  submit a cover letter.

 The cover letter should enclose:

    • Your original death certificate;
    • Your original Will (if any);
    • Your original ID book/card;
    • The original ID book/card of the spouse of the deceased;
    • Your original marriage certificate;
    • If divorced at the time of death, your talāq certificate/faskh certificate or divorce order from court if you had a civil marriage;
    • Executor’s acceptance of trust form;
    • The executor’s ID book/card;
    • The Master’s completed death notice;
    • Islamic distribution certificate issued by the MJC or other recognised body.

Note that online reporting of estates has commenced in 2024 so it will be more difficult for laypersons to report estates in person as the Master’s office is insisting on receiving online submissions only. Once reported online, an estate number is issued and the original will is lodged in person with a cover letter bearing the estate number

Who can assist my executor with the winding up of my estate and what will it costs?

Lawyers, accountants, or professional executors can assist. Costs vary but are usually calculated as a percentage of the estate value.

How long will it take to wind up my estate?

The time to wind up an estate varies, but it typically takes 9 to 18months. Complex estates may take longer.

What are the typical taxes my executor will have to pay when winding up my estate in South Africa?

Typical taxes include:

    • Estate Duty (20% on estates over R3.5 million, 25% over R30 million);
    • Capital Gains Tax on certain assets;
    • All outstanding tax returns and taxes due to date of death;
    • Post-death tax returns and taxes are due before SARS will issue a deceased Estate Declaration (DEC) letter, which the Master’s office requires before final distribution of assets can take place
Will my pension, provident and retirement annuity funds form part of my estate?

Proceeds from pension, provident and retirement annuity funds are excluded from a deceased estate and do not attract estate duty.  These benefits fall under the Pensions Fund Act. While as a member you can nominate beneficiaries, the trustees of the retirement fund will have the final say in distributing your benefits after your death amongst your financial dependants (those people who were financially dependent on you during your lifetime).

Scroll to Top