Dear Clients,
As conveyancing attorneys and advisors in the South African property market, we feel compelled to address a concerning trend that has come to our attention. Some estate agents and attorneys are misleading first-time foreign property buyers with false claims about what happens to their assets if they pass away without a South African Will. Specifically, they’re being told that their property will automatically default to the State. This is simply not true—and it’s a claim that raises serious questions about honesty and integrity.
Let’s set the record straight with clear, factual information to protect you and your investments.
The Truth About Inheritance in South Africa
If someone passes away in South Africa without a Will, their estate is governed by the Intestate Succession Act. This law ensures that the deceased’s assets are distributed to their family, not handed over to the State. The order of inheritance is straightforward:
- Spouse and/or children inherit first.
- If there’s no spouse or children, the estate passes to the parents.
- If there are no parents, it goes to siblings.
- If no siblings, it extends to nieces, nephews, or cousins, and so on.
In the rare case that someone dies without a Will and no traceable family, their assets are placed in the Guardian’s Fund, managed by the Master of the High Court, for 30 years. Only if no family member claims the inheritance during this period would the assets eventually transfer to the State. This scenario is exceptionally unlikely, especially for most property owners.
Why the Misinformation?
So why are some agents and attorneys spreading this false narrative? The answer, unfortunately, points to self-interest. In some cases, unsuspecting foreign buyers are being “guided” to sign a South African Will—often prepared by the agent’s preferred attorney. These Wills may appoint the attorney as the executor of the estate and stipulate that the property be sold through the same agent upon the owner’s death. This creates a potential financial windfall for both the attorney and the agent, who stand to earn fees and commissions from the estate.
This practice raises serious ethical concerns. At best, it’s a lack of transparency; at worst, it’s a calculated effort to manipulate buyers into arrangements that benefit the agent and attorney, not the property owner.
What You Can Do to Protect Yourself
As a foreign property buyer in South Africa, here are steps to ensure your interests are safeguarded:
- Seek Independent Legal Advice: Work with a reputable, independent attorney who has no ties to your estate agent. They can provide unbiased guidance on whether a South African Will is necessary based on your circumstances.
- Understand Your Options: If you already have a valid Will in your home country, it may be recognized in South Africa, provided it meets certain legal requirements. Consult an attorney to confirm.
- Be Wary of Pressure Tactics: If anyone insists you mustsign a South African Will to avoid losing your assets to the State, question their motives. Ask for clear explanations and verify their claims independently.
- Plan Your Estate Thoughtfully: A Will is a personal decision. If you choose to create one, ensure it reflects yourwishes, not those of others who may have a financial stake in your estate.
Our Commitment to You
At our firm we prioritize transparency, integrity, and your peace of mind. We’re here to provide accurate information and connect you with trusted professionals to guide your property journey. If you have questions about estate planning, inheritance laws, or any aspect of owning property in South Africa, please reach out. We’re happy to assist or refer you to independent experts.
Don’t let misinformation cloud your investment decisions. Stay informed, ask questions, and make choices that protect you and your family’s interests.
Warm regards,
Chris Fick
Chris Fick & Associates Inc.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).