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When someone dies without a will in South Africa, the Intestate Succession Act 81 of 1987 decides who inherits, and the law applies a fixed formula that takes no account of what the deceased may have promised anyone. A surviving spouse and children inherit first, with the spouse taking R250,000 or a child’s share of the estate, whichever is greater. Where there is no spouse or descendant, the estate passes up and outward through parents, then siblings, then the nearest blood relatives. The estate still has to be reported to the Master of the High Court within 14 days of the death. The difference is that the family must nominate someone to be appointed, rather than the deceased having chosen that person in advance. That single gap is what turns an ordinary administration of deceased estates into a slow and sometimes contested one. How deceased estates work when there is no will Two statutes govern deceased estates in South Africa. The Administration of Estates Act 66 of 1965 sets out the machinery, covering how an estate is reported, who may administer it, and how assets are collected and distributed. The Intestate Succession Act 81 of 1987 supplies the distribution formula that applies where no valid will exists. Dying intestate does not mean the estate escapes the process. Every step still applies: reporting to the Master, appointment of the person who will administer the estate, notice to creditors, a Liquidation and Distribution Account, and transfer of what remains to the heirs. The only thing missing is the deceased’s own instructions. The Act applies to the whole estate where there is no will at all, and to part of it where a will exists but fails to deal with everything. A will that leaves the residue to someone who has already died, or that is invalid for want of proper signature, can push an estate into intestacy without anyone intending it. Our guide on when you need a deceased estate lawyer covers what that administration involves in practice. What is a deceased estate? A deceased estate comes into existence the moment a person dies leaving property or a document that is or purports to be a will. It is broader than most people assume, and it takes in: bank accounts and cash on hand immovable property, including a share in a jointly owned home vehicles and household contents, including furniture shares, unit trusts and other investments pension and provident fund benefits, where these are payable to the estate money owed to the deceased by other people the deceased’s debts, from a bond and credit cards through to the funeral account The estate is a separate legal entity until it is wound up. Nothing can be transferred to an heir until creditors have been paid and the Master has approved the account. Distributing assets early is one of the most common and costly errors families make. Who inherits under the Intestate Succession Act The Act sets out an order of succession that starts with the immediate family and works outward. Where the deceased leaves a spouse but no children, the spouse inherits the entire estate. Where there are children but no spouse, the children share equally, and the descendants of a child who died before the deceased step into that child’s place. The rule that causes the most confusion applies where both a spouse and children survive. The spouse takes a child’s share or R250,000, whichever is the greater amount, and the children divide the remainder. That R250,000 figure is fixed by the Minister of Justice by notice in the Gazette, so it can change. A child’s share is worked out by dividing the value of the estate by the number of children who survived the deceased or who died leaving their own descendants, increased by one to account for the surviving spouse. In an estate worth R900,000 with a spouse and two children, the estate divides by three, giving a child’s share of R300,000. The spouse takes R300,000 because it exceeds R250,000, and each child receives R300,000. Change the numbers and the outcome shifts. In an estate worth R600,000 with a spouse and three children, a child’s share is R150,000, so the spouse takes the R250,000 minimum instead and the three children divide the remaining R350,000 between them. Smaller estates therefore favour the surviving spouse, which is deliberate. Here is the order of succession at a glance: Who survives the deceased Who inherits Spouse, no descendants The spouse inherits the entire estate Descendants, no spouse The descendants share equally Spouse and descendants The spouse takes a child’s share or R250,000, whichever is greater; the descendants take the rest No spouse or descendants, both parents alive The parents inherit in equal shares No spouse or descendants, one parent alive That parent takes half; the descendants of the late parent take the other half No spouse, descendants or parents The nearest blood relations inherit in equal shares   Life partners are worth a separate word. Following the Constitutional Court judgment in Bwanya and the Judicial Matters Amendment Act 15 of 2023, which took effect on 3 April 2024, a surviving partner in a permanent life partnership with reciprocal duties of support can inherit on intestacy. That protection is real but it is not automatic, because the surviving partner has to prove the relationship and the duty of support, and other heirs can contest it. Customary marriages are recognised, and where there is more than one spouse each is entitled to a child’s share or the R250,000 minimum. How the Master of the High Court appoints an executor The estate must be reported to the Master’s office in the area where the deceased lived, within 14 days of the death. Reporting is done on prescribed forms, and an intestate estate generally calls for: a completed death notice the original or a certified copy of the death certificate a next-of-kin affidavit confirming who the surviving family members are an inventory setting out the assets and

An antenuptial contract is a legal agreement you sign before your wedding that sets out how you and your spouse own assets and carry debts during the marriage. Sign one, and you marry out of community of property with your estates treated separately. Sign nothing, and South African law marries you in community of property by default, merging your two estates into one and making each of you liable for the other’s debts. That default catches many couples out. A partner who has never taken out a loan can become jointly responsible for debt their spouse ran up years earlier. The contract lets you set the terms of your financial partnership yourselves, rather than letting the Matrimonial Property Act decide for you. What is an antenuptial contract? An antenuptial contract, usually shortened to ANC and often called a prenup, is a notarial agreement signed by both partners before they marry. Where the law would otherwise pool everything you both own, it lets you keep your estates separate and set your own rules for what belongs to whom. Yes, an antenuptial contract is the same thing people mean by a prenup. The word “antenuptial” means “before marriage”, and the document is drawn up under the Matrimonial Property Act, the statute governing how married couples hold property in this country. The meaning of an antenuptial agreement comes down to choice. Without it, your marriage follows one fixed set of rules; with it, you select the marital system that fits your circumstances, whether you are protecting a business or entering a second marriage. Family law attorneys handle this work under their family law practice. In community of property versus out of community of property South Africa recognises two main marital systems: in community of property and out of community of property. The difference decides who owns what, who owes what, and how your estate is divided if the marriage ends. In community of property is the default, which you get automatically by marrying without an ANC. Your two estates merge into a single joint estate owned in equal, undivided shares. Everything either of you brought in, and everything you acquire during the marriage, becomes jointly owned, debts included. Out of community of property is the system you choose by signing an ANC before the wedding. Your estates stay separate, so what you owned before the marriage stays yours, and in most cases what you earn during it stays yours too. It suits business owners, professionals exposed to creditor risk, and anyone marrying with significant assets already in hand. What happens if you get married without an antenuptial contract? You marry in community of property, which carries a consequence many couples do not anticipate: joint liability for debt. Because the two estates become one, a creditor with a claim against your spouse can pursue the joint estate, including assets you personally brought to the marriage. Reversing the default afterwards is possible but expensive, since it means applying to the High Court to change your matrimonial property system. How the accrual system works The accrual system shares the growth of your estates while keeping the estates themselves separate during the marriage. It applies automatically to any marriage out of community of property unless your ANC specifically excludes it, and it measures how much each estate grows from the wedding day to the day the marriage ends. When the marriage dissolves, the spouse whose estate grew less has a claim against the other equal to half the difference between the two growth figures. Assets you owned before the marriage, along with inheritances and donations, can be excluded if you list them in the contract. Out of community of property with accrual This is the most common choice for modern South African marriages. Your estates stay separate and you each manage your own finances, and neither of you is liable for the other’s debts. The sharing happens only at the end, so a spouse who stayed home to raise children or earned less is not left empty-handed. Out of community of property without accrual Here the estates stay completely separate from start to finish. Neither spouse has any claim to the other’s assets or estate growth, during the marriage or when it ends. This suits second marriages where partners want to preserve assets for children from a previous relationship, couples with a large wealth gap, or one partner heavily exposed to creditor risk. It offers the strongest asset protection of the three systems, at the cost of the shared-growth safety net accrual provides. Here is how the three systems compare at a glance: Feature In community of property Out of community, with accrual Out of community, without accrual How you get it Default, no contract ANC signed before marriage ANC that excludes accrual Estates during marriage Merged into one Separate Separate Liable for spouse’s debt Yes No No Sharing at divorce or death Joint estate split equally Growth shared, half the difference No sharing Best suited to Couples wanting full pooling Most modern marriages Second marriages, high creditor risk   When must an antenuptial contract be signed? An antenuptial contract must be signed before your wedding day, without exception. A contract signed after the ceremony has no effect on its own, and couples who miss this window face the far more involved route of a High Court application. Validity depends on three requirements. It must be drawn up and attested by a notary public, a specially admitted attorney, so a standard attorney who is not also a notary cannot execute it. Both partners and the notary must sign before the marriage, and the notary then registers the contract at the Deeds Office within three months of signing for it to be enforceable against creditors and third parties. Cost varies with the complexity of your assets and whether accrual is included or excluded, and you are generally looking at the notary’s professional fee together with a separate Deeds Office registration fee. A couple married under customary law

Most South Africans think estate planning means writing a will. It does not. A will is one piece of a broader plan that covers what happens to your assets, your dependents and your business interests when you die or become incapacitated. Without that broader plan in place, your family inherits not just your estate but the legal complications that come with it. This article explains what estate planning actually involves and when a basic will is enough. It also covers the situations where you need a specialist attorney rather than a bank, an insurer or a generic online service.   What Estate Planning Actually Covers Estate planning is the structured process of deciding what happens to your assets and your affairs both during your lifetime and after your death. It typically includes a valid will, but it also covers questions of trust structures, life insurance and how your estate will be administered through the Master of the High Court. For business owners, estate planning extends to what happens to your shareholding and the continuity of the business itself. For parents of minor children, it covers guardianship and how assets will be held for their benefit until they reach maturity. The goal is twofold. First, to ensure your assets go where you want them to go. Second, to minimise the cost and the time it takes to wind up your estate after your death, while keeping the tax burden as low as possible.   What Happens If You Die Without a Plan When you die without a valid will in South Africa, your estate is distributed according to the Intestate Succession Act 81 of 1987. The Act sets out a fixed order of inheritance based on your relationship to surviving family members, with no regard for your actual wishes. Intestate distribution is rarely what people would have chosen. Spouses inherit alongside children rather than in priority, and long-term partners who were never married inherit nothing. Step-children and informally adopted children have no claim under the Act. The Master of the High Court appoints an executor where there is no will, and the process takes longer than it would have if a will had named one. The cost is also higher. An executor appointed by the Master typically charges the maximum prescribed fee of 3.5% plus VAT on the gross value of the estate, where a will-appointed executor can negotiate a lower rate. On a R5 million estate, that difference alone is more than R200,000 that could have stayed with the family.   When a Basic Will Is Enough For people with straightforward affairs, a properly drafted will is often sufficient. If you own a home, a car and a few investment accounts and want everything to go to a spouse or to children equally, a will signed and witnessed correctly under the Wills Act will achieve that. The legal requirements for a valid will in South Africa are specific. The will must be in writing, and you must sign it in the presence of two competent witnesses who are at least 14 years old and not beneficiaries under the will. The witnesses must sign at the same time, in your presence and in the presence of each other. Errors in execution are one of the main reasons wills are challenged or declared invalid. A basic will is not enough where your circumstances are more complex than a single straightforward distribution.   When You Need an Estate Planning Attorney There are situations where a will alone is not sufficient and where the advice of a specialist attorney becomes valuable. Where you have minor children, your will needs to address guardianship and how their inheritance will be held until they are old enough to manage it. A testamentary trust or another protective structure usually makes more sense than a lump sum paid to a young adult. Where you own a business, your estate plan needs to cover what happens to your shareholding, who has the authority to operate the business in the period before the estate is wound up, and how value will be realised for your heirs. Shareholders’ agreements and buy-and-sell arrangements often need to be aligned with your will. Where your estate exceeds the estate duty abatement, structuring becomes important. South African estate duty is currently 20% on dutiable estates above R3.5 million, rising to 25% above R30 million. Section 4(q) of the Estate Duty Act allows the unused portion of one spouse’s abatement to roll over to the survivor, giving a married couple up to R7 million in combined abatement. Without proper planning, much of this benefit can be lost. Other situations call for specialist input. Assets held in more than one country, blended family arrangements and complex trust structures all create interactions that need to be designed by someone who works with them daily.   Trusts and When They Make Sense A trust is a separate legal entity that holds assets for the benefit of named beneficiaries. In South African estate planning, trusts are most commonly used to protect minor beneficiaries, to hold business interests and to manage estate duty exposure on growth assets. An inter vivos trust is set up during your lifetime and can hold assets that grow in value outside your personal estate. A testamentary trust is created in your will and only comes into existence on your death. Each option has its own tax consequences and its own ongoing costs to maintain. Trusts are not always the right answer. The tax treatment of trusts in South Africa has tightened significantly in recent years, and a trust that made sense ten years ago may now be a more expensive structure than holding the assets in your personal name. An estate planning attorney advises on whether a trust adds value in your specific situation, and if so, how it should be structured.   The Cost of Getting It Wrong Estate administration costs scale with the complexity of the estate and the quality of the planning. A

Most divorces in South Africa fall into one of two paths: mediation, where both spouses work with a neutral mediator to reach agreement, or contested court proceedings, where each party is represented by their own attorney and the court decides the outcome. Choosing between them is one of the first practical decisions a separating couple makes, and the wrong choice costs time and money. It can also damage the relationship that needs to remain functional after the marriage ends. At Schoeman Borman, mediation is our first approach in most divorce matters. Litigation is the route we take when mediation is not appropriate or has not worked. This article compares the two paths on cost and time, and explains when each one is the right choice.   Divorce Mediation: How It Works Divorce mediation is a structured negotiation between both spouses, facilitated by a neutral mediator. The mediator does not represent either party. Their role is to help both spouses reach agreement on the issues that need to be resolved. These typically include the division of assets, the question of maintenance and any parenting arrangements where children are involved. Mediation is voluntary in most cases, but Rule 41A of the Uniform Rules of Court requires parties in High Court matters to actively consider mediation before litigating. When a divorce action is initiated, both parties must serve a notice indicating whether they agree to mediation and, if not, why not. This means mediation is not just an alternative to court. It is a step the legal system expects parties to take seriously. A successful mediation produces a written settlement agreement. To be enforceable, that agreement needs to be incorporated into a divorce decree by the court. An attorney drafts or reviews the agreement, presents it to the court along with the divorce papers, and the court grants a decree that gives the agreement the same force as any other court order.   Contested Divorce: When Court Proceedings Are Necessary A contested divorce is one where the spouses cannot agree on one or more substantive issues, and the matter proceeds through the courts. Each spouse is represented by their own attorney. Pleadings are exchanged, evidence is gathered through the discovery process, and if no settlement is reached the matter is decided at trial. Contested proceedings are the right route when one spouse refuses to engage. They are also necessary where there are urgent issues such as protection from harm or the dissipation of marital assets, or where one party is hiding information that needs to be compelled through court orders. Where the legal issues are too complex for mediation alone, such as disputes over business interests or international elements that affect jurisdiction, contested proceedings are also the appropriate route. Most contested divorces still settle before trial, often after an initial period of negotiation between the legal teams. Reaching that settlement requires legal representation throughout the process.   Cost Comparison Mediation is significantly cheaper than contested litigation. A mediated divorce involves the mediator’s fees and the cost of finalising the settlement agreement and divorce decree through the court. The total is usually a fraction of what a contested divorce costs. Contested litigation costs scale with the length of the dispute. Each step generates legal fees: the pleadings, the discovery process, expert reports, court appearances and the trial itself. A contested divorce that runs to trial can cost many times what a mediated divorce costs. The longer the matter takes, the more those costs accumulate. Cost is not the only consideration, but it is a real one. Couples who can resolve their divorce through mediation usually keep more of the marital estate intact for themselves and their children, rather than spending it on legal fees.   How Long Each Process Takes Mediation typically takes a few weeks to a few months, depending on the complexity of the issues and how willing both parties are to compromise. Once an agreement is reached, the unopposed divorce can usually be finalised within a few weeks of the application being filed at court. Contested divorces take considerably longer. From the issuing of summons to a trial date, the process commonly takes a year or more, sometimes substantially longer where the matter is particularly contested or where court rolls are full. During this time, both parties are unable to fully move on with their lives, which compounds the emotional and financial cost. Time matters most where children are involved. Prolonged litigation creates ongoing uncertainty for children about where they will live and how they will see each parent, and it tends to entrench conflict between the parents in ways that affect co-parenting long after the divorce is finalised.   When Mediation Works Well Mediation works well when both spouses are willing to negotiate in good faith and there is no significant power imbalance between them. It is faster and cheaper than litigation, and it gives both parties more control over the outcome than handing the decision to a court. Mediation is particularly suited to couples who want to maintain a working relationship after the divorce, which matters most where children are involved. Co-parents who design their own arrangements for care and contact tend to have less conflict afterwards than those who have a parenting plan imposed by a court. The agreements are also more durable, because both parties had a hand in designing them. Mediation also gives both parties the opportunity to address practical considerations that a court process is not well suited to handle. Things like how birthdays and holidays will be split, or how school decisions will be made, can be agreed in detail, rather than left to a generic court order that does not anticipate the realities of the family’s life.   When Mediation Is Not Appropriate Mediation is not the right route in every divorce. It assumes both parties can negotiate as equals, which is not always the case. Mediation is generally not recommended where there has been domestic abuse, because the imbalance of power

Decisions about where your child lives and how often you see them are governed in South Africa by the Children’s Act 38 of 2005, which places the child’s best interests above what either parent wants. Knowing when to involve a child a custody attorney can be the difference between a resolution that works and a dispute that makes things harder for everyone. What Child Custody Means in South Africa South African law does not use the word “custody” in the way most people use it in conversation. The Children’s Act refers instead to parental responsibilities and rights. These responsibilities and rights cover: Care, which determines where the child lives and who looks after them day to day.  Contact refers to the right to spend time with the child. Guardianship covers the right to make major decisions about the child’s life.  Maintenance is addressed separately but is closely connected to all of the above. Both parents generally retain these rights after separation or divorce unless a court orders otherwise. A child custody attorney helps parents understand what their rights actually are, and helps them to come to an agreement between themselves before court involvement is necessary. You Are Going Through a Divorce With Children Divorce proceedings involving children require a parenting plan. This is a written agreement that sets out how each parent will exercise their responsibilities and rights after the marriage ends. It covers details such as where the child will primarily live, how contact with the other parent will work, and so on. If both parents can reach agreement, the plan can be formalised with the assistance of a mediator or attorney and made an order of court. If they cannot agree, the court will decide, and that process takes considerably longer, inevitably costing more than a negotiated plan. A child custody attorney helps you understand what a workable parenting plan looks like, drafts or reviews the agreement, and represents you if the matter proceeds to court. Getting proper legal advice at this stage protects both you and your child from arrangements that are unworkable or that leave important matters unresolved. You and the Other Parent Cannot Agree on a Parenting Plan Where agreement is not possible, the Children’s Act requires that a parenting plan be registered with the Family Advocate or made an order of court. The Family Advocate’s office investigates the circumstances and makes recommendations to the court based on the child’s best interests. A child custody attorney prepares you for this process, gathering the relevant evidence, and ensuring your position is properly presented. The Other Parent Is Denying You Access A child custody attorney ensures that you have legal recourse if the other parent is refusing to comply with an established parenting plan or court order. Willful non-compliance with a court order is a serious matter and an attorney can bring an urgent application to enforce the order or hold the non-compliant parent in contempt. If no formal order is in place yet, a child custody attorney can apply for an interim contact order while the main dispute is resolved. This prevents a situation where one parent effectively sidelines the other during a lengthy legal process. An attorney can advise on common access disputes, where the relationship between the parents has broken down completely, advising on whether the circumstances call for supervised contact or a variation of the existing arrangement, always with the child’s wellbeing as the measure. You Are an Unmarried Parent Many parents are misinformed about the different default rights between unmarried fathers and unmarried mothers in South Africa: An unmarried mother automatically has full parental responsibilities and rights.  An unmarried father acquires them only if he meets specific requirements under the Children’s Act.  These include whether he was in a relationship with the mother at the time of the child’s birth, whether he has contributed to the child’s upbringing, and whether he has been identified as the father on the birth certificate. Despite the differences in the default rights for unmarried fathers and mothers, an attorney can help each move through the custody process, ensuring that both sides are presented equally according to their positions..  You Want to Relocate With Your Child If you want to move to another city or another country with your child, and the other parent has contact rights, you generally cannot do so without their consent or a court order. The court will consider factors such as the reasons for the relocation, the impact on the child’s relationship with the parent being left behind, and the child’s own wishes depending on their age and maturity. These cases require careful preparation and clear legal representation on both sides. A child custody attorney advises on whether your proposed relocation is likely to be approved and helps you prepare the application. But the attorney can also help you if you are the parent opposing a relocation, ensuring that you understand the grounds on which the application can be resisted. An Existing Custody Order Needs to Change As children grow older their needs shift, and a parenting plan that worked at five may be entirely unsuitable at thirteen.  To change an existing court order, you need to show a material change in circumstances since the original order was made. A child custody attorney assesses whether your situation meets that threshold and advises on what evidence you need. The attorney then brings the variation application on your behalf. Attempting to vary an order informally, by simply agreeing with the other parent to do things differently without updating the court order, leaves both parents without legal protection if the arrangement breaks down again. What SB Lawyers Can Do for You Child custody matters are rarely straightforward, and the emotional pressure involved makes it easy to make decisions that seem reasonable in the moment but create problems later. Having an attorney who understands both the law and the practical realities of co-parenting helps you make decisions that hold up. At SB Lawyers, our family