Your estate is the term used to describe all the things you owned, owed and over which you had control on the date of your death.
It includes your personal items, any properties you own, any investments or cash in the bank, some life assurance pay outs, as well as any debts you have at the time of your death.
It also includes any businesses you own or control – or the shares in them.
And includes any copyrights or patents you own or any rights to property – for example, if you are given the right to use a property (known as a usufruct).
What happens to your estate?
The way your estate is dealt with after your death is regulated by the Administration of Estates Act and is supervised by the Master of the High Court.
In terms of this Act, a death certificate must be issued, and your estate must be reported to the Master of the High Court within 14 days.
The Master will then appoint an executor for your estate. The executor is the person who will do the administration required to wind up your estate. If you have a last will & testament, you should nominate an executor in your will.
The executor must:
If your estate is worth less than R250 000, the Master can issue a Letter of Administration, and the executor won’t have to follow the full process outlined in the Administration of Estates Act.
If your estate is worth more than R250 000, the Master will issue a Letter of Executorship to the executor who will be expected to wind up your estate following all the processes outlined in the Act and any other laws that apply.
If your estate is worth less than R125 000, your heirs can ask the Magistrates Court for assistance. They will only help if you die without a will, or intestate, your estate is not insolvent, no minors without a guardian are set to inherit and the cash in the estate is not worth more than R20 000.
When you die your assets and debts will make up your estate regardless of whether you have a will.
But if you have a will, the process of dealing with what is in your estate is very different compared to what happens if you die without a will.
If you die without a will, you will be regarded as having died intestate and your estate must be dealt with in terms of the Law of Intestate Succession. This means those who will inherit will be determined in terms of the law. Read more: Who will inherit if I die without a will?
South Africa has freedom of testation, which means you are free to leave your assets to whomever you like, but you must do so by making a will. Read more: Why is it important to have a will?
However, you should not forget that if you have a duty to support a surviving spouse or life partner or a dependent child and you do not fulfil this duty, your decisions on who should inherit from you could be challenged.
Your surviving spouse or life partner can bring a claim in terms of the Maintenance of Surviving Spouses Act and your child or children can claim maintenance in terms of the common law.
Your marriage
Your estate is also affected by the way in which you are married.
If you are married in community of property, both of you own the entire estate jointly in undivided shares. When you die, half of your joint estate will go to your surviving spouse.
If you are married out of community of property with accrual, your spouse may have a claim against your estate, or your estate may owe your surviving spouse, because what you acquired during the marriage – with some exceptions – should be shared equally between you.
What’s in your estate and what’s not
There are a few things you should know when it comes to what is in your estate and what is not.
Property
As you would expect, any property you own or co-own should be in your estate.
Investments
Any investments, including investments with a life assurance company, are included.
Life insurance
If you have life insurance that pays out when you die and you have named beneficiaries, the money can be paid directly to them without being paid into your estate.
However, the benefit will still be deemed to be an asset in your estate – except under certain circumstances mostly relating to policies owned by businesses.
Depending on the amount of the policy, your estate may be liable for estate duty – a tax paid to the South African Revenue Service on that life insurance benefit.
If the proceeds of a life policy are paid directly to a beneficiary you named in the policy, the executor won’t be able to charge executor’s fees on that policy.
You may want a life policy to pay into your estate to cover any debts you have. In that case, you can name your estate as the beneficiary.
Remember to provide for estate duty on that amount if your estate will exceed the exempt amount (currently R3.5 million). At least 30% of estates cannot be wound-up because the deceased failed to leave enough money to pay debts, taxes and estate costs.
Not retirement savings
Usually your retirement savings are not included in your estate as the funds’ trustees distribute these to your dependants. If you do not have any dependants, you can nominate a beneficiary or specify that you want the money to be paid into your estate.
Not trust assets
Assets you have moved into a trust that is controlled by trustees for the benefit of beneficiaries are not included in your estate, as long as the trust is set up correctly. If you have placed assets in a trust by way of a loan to the trust, the value of the loan must be included in your estate.
Offshore assets
Your estate includes property and investments and businesses both in South Africa and in any other parts of the world. Assets you own outside of South Africa are known as your offshore assets.
If you have property in South Africa, you may have an estate in South Africa after you die regardless of whether you are a resident of South Africa or not. Your nationality is largely irrelevant when your estate is determined.
If you are a resident of South Africa, property you own in another country will be included in your South African estate. If you are no longer a resident, your South African estate will only include the property you own here.
Remember, however, that if you have property in another country, you may also have an estate in that country. In some cases, largely for practical reasons, it’s wise to have a separate will for the offshore jurisdiction so your offshore estate can be wound-up by an expert in that country.
