It has become common for South Africans to hold a meaningful portion of their wealth outside the country, whether that is a property in Portugal, a share portfolio in the US, a trust interest in Mauritius, or a bank account in the Channel Islands. Many people assume their South African will automatically takes care of all of it. That assumption is one of the more persistent misunderstandings in local estate planning, and it can cost heirs years of delay and a meaningful share of the inheritance itself. The law of succession does not follow a person across borders. It stops where each country's authority stops, and the gap between them is where problems tend to live.

What Happens When a South African Dies Owning Assets Abroad

When a South African resident passes away, the executor named in the will must report the estate to the Master of the High Court. This process is governed by the Administration of Estates Act 66 of 1965. The Master then issues Letters of Executorship, which is the document that gives the executor authority to deal with the estate. In South Africa, those letters are treated as final proof of that authority.

The Authority of the Master Stops at the Border

The problem is that Letters of Executorship do not travel. Every country has its own rules for foreign assets, and every country requires its own process before a foreign executor can act. Broadly, there are three things to be aware of:

  • Resealing. Some countries allow South African Letters of Executorship to be "resealed" by a local court, which simply means the court recognises them and extends their authority into that country. The United Kingdom does this under the Colonial Probates Act of 1892.
  • Fresh grant. Other countries will not reseal. The executor has to apply for a new grant from scratch, called a Grant of Probate in common-law countries, or a local equivalent elsewhere, before any asset can be touched.
  • Authentication.Most foreign authorities want certified and apostilled copies of the death certificate and Letters of Executorship. Some jurisdictions also require a sworn translation.

The Three-Year Reality

None of this happens quickly. The foreign process usually cannot even start until the South African estate has reached a certain stage of administration, which is typically six to twelve months in. Once the foreign process does begin, it runs on its own timeline. The practical result is that South African estates with offshore assets routinely take three years or longer to wind up. During that time, heirs often cannot access what has been left to them, and the estate keeps paying property rates, insurance, and account fees in the meantime.

Can a Single South African Will Cover Foreign Assets?

The legal answer is yes. Section 3bis of the Wills Act 7 of 1953 gives effect to an international treaty that South Africa signed up to in 1970, the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions of 1961. The effect of the treaty is that a will validly drafted in South Africa will generally be recognised in other treaty countries, and the reverse is also true. In principle, a single South African will can therefore govern a bank account in London, a share portfolio in New York, or a flat in Lisbon.

Recognition of the Will Is Not the Same as Administration of the Estate

This is where people go wrong. Recognition of the document is the easy part. The hard part is the administration, which means everything the executor has to do in each country before the assets can actually be transferred. A single worldwide will does not shortcut that process. The executor still has to obtain Letters of Executorship in South Africa first, and then seek recognition or a fresh grant in every country where assets are held. Every one of those foreign applications adds time, paperwork, and cost.

A single will is a valid tool, but it is rarely an efficient one when offshore assets are meaningful. The real issue is not whether the will is legal, but how the administration plays out on the ground.

The Three Structures Available to You

South Africans with offshore assets generally have three ways to structure their estate planning. None of them is inherently right or wrong. The best choice depends on what you own, where you own it, and how smoothly you want the administration to run.

A Single Worldwide Will

A worldwide will is one South African will that covers your entire global estate. It is the simplest option, and it removes any risk of contradictions between multiple documents. For someone with a small offshore footprint, it can work well enough. It tends to be a reasonable fit in the following circumstances:

  • The offshore assets are mainly bank accounts, unit trusts, or shares held with institutions that will accept a South African grant.
  • The assets are in countries with inheritance rules similar to ours, such as the United Kingdom, Australia, New Zealand, or parts of Canada.
  • The way you want your estate distributed is broadly compatible with what the foreign country would allow in any event.

The limitation is administrative rather than legal. A single will still has to be administered in each country one after the other, so any delay at the Master's Office in South Africa holds up the entire global estate. Where there is immovable property abroad, or where the country uses forced heirship rules, a worldwide will is usually not the right choice.

Separate Wills for Each Jurisdiction

The separate wills approach treats every country where you own assets as its own estate, with its own will, administered under its own local law. The South African will deals only with South African assets, and a separate will is drafted in each foreign country for the assets there.

The main advantage is that each will can be lodged and processed in its own country at the same time, rather than waiting in sequence. This cuts the total wind-up period meaningfully. A locally-drafted foreign will also reduces the chance that any of its provisions will be misunderstood or rejected by a foreign court.

The trade-off is that the wills have to be drafted carefully so they do not overlap or cancel each other out. Upfront costs are higher, but the savings in administration time and reduced legal disputes later usually outweigh this.

A South African Will with a Single Offshore Will

The third option sits between the other two. You have one South African will for your domestic assets, and one offshore will covering everything you own in a chosen foreign country. This works well when most of your foreign assets sit in one place, for example a London flat combined with a UK investment account. It works less well when your foreign estate is spread across several countries.

The advantage over a worldwide will is that the two estates can be administered at the same time. The advantage over a full set of separate wills is lower complexity and cost. The limitation is that any assets held outside the two chosen countries fall into a gap, and will need either a further will or a separate, less coordinated process.

Forced Heirship, and When Foreign Law Overrides Your Wishes

South African law gives you freedom of testation, which means you can leave your assets to whomever you choose. That freedom is not absolute. The Maintenance of Surviving Spouses Act 27 of 1990 allows a surviving spouse to claim reasonable maintenance from the estate if the will does not provide for them properly, and the Children's Act 38 of 2005 creates obligations toward dependent children. Within those limits, however, your wishes are what matter.

Many other countries take the opposite approach. These are mostly civil-law countries, with legal systems based on French or Roman-Dutch tradition, and they apply what is called forced heirship. A fixed portion of the estate is reserved by law for certain family members, no matter what the will says. The countries most relevant for South Africans include France, Portugal, Spain, Italy, and Mauritius.

How Forced Heirship Works in Practice

Under forced heirship, a set portion of the estate is legally protected for certain heirs, usually the spouse and children. The testator can only distribute whatever is left over, which is called the disposable portion.

Here is what this looks like in practice. A South African owns a villa in Portugal. His will leaves the villa entirely to his wife. Portuguese succession law, however, reserves a protected share for his children. When the estate is administered in Portugal, the local law overrides the will to the extent needed. The children receive their statutory share, and the wife receives what is left. This is not because the will was drafted badly. It is because the country where the villa is located applies its own rules when transferring ownership.

The EU Succession Regulation as an Elective Escape

The European Union offers one useful way around forced heirship. The EU Succession Regulation, known formally as Regulation (EU) No 650/2012 and informally as Brussels IV, lets you choose the law of your nationality to govern the succession of your assets in participating EU member states.

For a South African with assets in France, Portugal, Spain, or Italy, this means you can expressly choose South African law in your will, which displaces the local forced heirship rules. For that to work, the choice has to be:

  • Made expressly in the will, not implied or assumed.
  • Clear about which law is being chosen, which for a South African national would be South African law.
  • Made in a will that is valid either under the law of your nationality or under the law of the country where the will was drafted.

This election is not automatic. If it is not made, the default rules of the country where the asset is located will apply. A South African will that simply leaves a French apartment to a particular beneficiary, without invoking Brussels IV, leaves that bequest fully exposed to French forced heirship.

Most countries outside the EU do not offer an equivalent mechanism. In those cases, forced heirship applies regardless of nationality, which is one of the strongest arguments for drafting a local will in that country and structuring the distribution in a way that works with, not against, local law.

The Double Taxation Problem and How South Africa Addresses It

South African tax residents pay estate duty on their worldwide assets. This is not a choice, it applies automatically and has nothing to do with whether you have an offshore will in place. Foreign countries, at the same time, usually tax the assets located within their own borders, which creates a real risk that the same asset is taxed twice.

How Estate Duty Applies to Worldwide Assets

Section 3(2) of the Estate Duty Act 45 of 1955 is the starting point. If you are ordinarily resident in South Africa at the time of death, your entire worldwide estate falls within South African estate duty. The structure is straightforward:

  • Estate duty is charged at 20% on the dutiable amount up to R30 million.
  • The rate rises to 25% on the portion above R30 million.
  • Every estate qualifies for a R3.5 million abatement, which effectively removes the first R3.5 million from the calculation.
  • Bequests to a surviving spouse are deductible under section 4(q), which defers duty on those assets until the second death.

A South African property, a London flat, and a US share portfolio all go into the same calculation. The executor has to value each foreign asset as at the date of death, convert the value to rand at the right exchange rate, and declare it to both the Master of the High Court and SARS.

Situs Tax in the United Kingdom and United States

The complication is that many countries also tax assets based on where they are located, not where the owner lives. This is called situs tax, and it is most relevant for South Africans in the UK and US.

The UK charges inheritance tax on UK-situated assets at 40% above the nil-rate band, which is currently £325,000. UK real estate, shares in UK companies, and money in UK bank accounts all fall within this. The tax is due within six months of the end of the month of death, and in some cases the asset cannot be transferred until the tax is paid or secured.

The US charges federal estate tax on US-situated assets at up to 40%. For non-US persons, the exemption is only $60,000, which is significantly lower than what applies to US citizens. This means a fairly modest US share portfolio can attract tax. The assets most commonly caught are US-listed shares, US real estate, and physical property located in the US.

This is the part people often miss. A South African who holds a reasonably modest US share portfolio through a local broker can find the estate owes US estate tax on the full value above $60,000, even though the investor never set foot in the United States.

Double Taxation Agreements and Their Limits

South Africa has estate duty Double Taxation Agreements, known as DTAs, with a small number of countries. The most relevant for South Africans with offshore assets are those with the United Kingdom and the United States. DTAs also exist with Sweden, Zimbabwe, Lesotho, Botswana, and Eswatini.

Where a DTA applies, the executor can usually claim a credit for foreign tax paid against the South African estate duty on the same asset. Section 4(e) of the Estate Duty Act offers a further mechanism for deducting the value of certain foreign property from the estate, subject to specific conditions.

This credit is not automatic. To claim it, the executor needs:

  • A detailed valuation of each asset for both the foreign and the South African calculations.
  • Documentation showing that the foreign tax was assessed and paid.
  • Correct application of the formula in the DTA, which usually limits the credit to the lower of the two tax amounts on the asset.
  • Careful timing between the foreign and South African filings.

Where South Africa has no DTA with the country in question, there is no automatic way to avoid double taxation. The same asset can, in principle, be taxed fully in both places. This is one of the reasons to think carefully about where offshore assets are held in the first place.

Accidental Revocation and Other Drafting Traps

The most common mistake in cross-border estate planning is not failing to draft the right wills, it is failing to draft them so they can work alongside each other. Two perfectly good wills can cancel each other out through one badly worded clause. A few other drafting errors can produce outcomes the testator never intended. Most of these risks come down to careful coordination between the South African attorney and the foreign attorney.

The Revocation Clause Problem

Most will templates include a standard line along the lines of "I hereby revoke all previous wills and testamentary dispositions." At home, this makes sense, it stops the new will from being confused with an older draft. In a cross-border context, it is dangerous.

Here is how it goes wrong. The South African will contains a general revocation clause. The testator later signs a separate UK will, which also contains a general revocation clause. The UK will revokes the South African will. Some time afterwards, the South African will is updated, and the new revocation clause revokes the UK will. The testator ends up with one valid will covering assets in two countries, which is the opposite of the intention.

The solution is to ring-fence each will by limiting both its scope and its revocation clause:

  • The South African will should state that it applies only to South African assets, and revokes only previous wills dealing with South African assets.
  • The foreign will should state that it applies only to assets in that country, and revokes only previous wills dealing with assets in that country.

The two wills have to be drafted together, not separately. A will drafted in isolation, without sight of the other, is where most cross-border estate disputes begin.

The Principle of Survivorship in Joint Ownership

Some common-law countries apply something called the principle of survivorship to jointly-owned assets. When one joint owner dies, their share passes automatically to the surviving joint owner by operation of law, regardless of what the will says. The countries most likely to affect South Africans are:

  • The United Kingdom
  • Ireland
  • Jersey
  • Guernsey
  • The Isle of Man

Take a South African couple who jointly hold a UK bank account. Neither of them can bequeath their share of that account to their children, because on the death of the first spouse the account becomes the sole property of the survivor. Any clause in a will saying otherwise is legally ineffective. This often surprises people, and once the principle is explained, the will is either redrafted, or the account itself is restructured so that the intended distribution is possible.

Language, Terminology, and Formal Validity

Legal terms do not always carry the same meaning from one country to the next, even when the words are identical. The word "trust" is the clearest example. In South African law a trust has specific statutory and fiduciary characteristics. In English law the term means something technically different, and a clause drafted using English conventions can produce unexpected results if a South African court has to interpret it, and vice versa.

Formal validity is a related issue. Section 3bis(1) of the Wills Act 7 of 1953 sets out which countries' formalities South African courts will accept for a will. In South Africa, a will is valid if it complies with the formalities of:

  • The place where the will was executed.
  • The place where the testator was domiciled or habitually resident, either when the will was signed or at death.
  • The country of which the testator was a citizen, either when the will was signed or at death.
  • The place where the testator's immovable property is situated, in respect of that property.

South Africa recognises foreign wills fairly generously. The reverse is not always true. A will signed in South Africa may not meet the formalities of a foreign country, especially in civil-law countries that require notarial execution or specific witnessing procedures. This is one of the strongest reasons for having the foreign will drafted and signed locally, under someone who knows that country's requirements.

When You Genuinely Need an Offshore Will

Not every South African with foreign assets needs a separate offshore will. The question depends on what you own, where you own it, and how each country treats the administration of foreign-held estates. The framework below is the one most practitioners use when advising clients.

Immovable Property Abroad

If you own immovable property in another country, a separate offshore will is almost always the right call. Real estate is governed by the law of the country where the property is located, which covers both how ownership is transferred and what formalities are required. A foreign court will almost always require its own grant of authority before the property can be transferred, and a locally-drafted will speeds this up considerably.

Foreign Bank Accounts and Business Interests of Meaningful Value

Bank accounts with sizeable balances, direct shareholdings in foreign companies, and interests in foreign partnerships or trusts usually warrant a separate will. There is no fixed threshold. It is a commercial judgment that weighs the cost of drafting and administering a second will against the likely cost of delays and complications if only one will is used. Modest balances in a common-law country can probably be covered by a worldwide will. Substantial holdings tip the balance toward a separate one.

Offshore Investments Held Through South African Institutions

If the offshore investment is administered by a South African institution, a separate foreign will is generally not needed. The investment is offshore, but the institution dealing with it is local, so the South African executor can deal with it through ordinary estate processes. Many of the offshore unit trusts, endowments, and structured products marketed in South Africa fall into this category.

Civil-Law Jurisdictions with Forced Heirship

Where foreign assets are in a civil-law country with forced heirship rules, a separate will is strongly advisable no matter the value. Countries in this category include France, Portugal, Spain, Italy, and Mauritius. A local will lets you work within the country's legal framework, make a Brussels IV election where that is available, and structure the distribution in a way the local court will recognise and enforce.

Dual Residency or Intended Emigration

If you split your time between South Africa and another country, or you are planning to emigrate, the whole estate structure needs to be looked at. Residency affects both the succession law that applies and the tax position. A will drafted on the assumption of one residence can produce unintended results once that residence changes. South Africa's tax residency rules, along with the process of formal emigration, both have direct consequences for which assets fall within your South African estate on death.

Van Deventer Dowlath & Marx Incorporated – Cross-Border Estate Planning

A well-structured global estate is not about having more documents, it is about having the right documents, coordinated with each other, and drafted with a clear understanding of how each country will treat the assets they govern. The cost of getting this right during the testator's lifetime is modest. The cost of getting it wrong falls on the heirs, in the form of years of delay, duplicated legal fees, and tax liabilities that proper planning would have reduced or avoided.

Van Deventer Dowlath & Marx Incorporated (VDM) has been advising South African families, investors, and business owners on conveyancing, estate planning, and litigation for over three decades. Our practice is built around the kind of technical legal work that cross-border estates demand, and our team is equipped to coordinate with foreign counsel where required to ensure that your South African will operates cleanly alongside any offshore arrangements. If you hold foreign assets, or are planning to acquire them, we invite you to speak with us before the structure becomes harder to unwind than it is to build.

Contact our wills and estate lawyers to arrange a consultation with our estate planning team.