WILLS AND ESTATES IN SOUTH AFRICA: DO I NEED A SEPARATE WILL FOR MY OFFSHORE ASSET/S?

A growing number of South Africans utilise their annual discretionary foreign investment allowance to acquire assets in foreign jurisdictions and/or to invest offshore. If you hold assets (offshore unit trust investments, investment properties, offshore bank accounts, shares etc) overseas or invest offshore the question one is typically faced with is whether one needs to have a separate Will to administer their offshore assets effectively.

To determine whether an offshore Will is required, one must consider the type and extent of offshore asset/s and where they are located.

General principles

The administration of deceased estates is governed by the Administration of Estates Act 66 of 1965 (“the Act”). Although an estate is not defined in the Act, the term estate generally encompasses all of a deceased’s assets wherever situated.

While a single South African Will is sufficient and can essentially cover worldwide assets, it is advisable and we recommend that clients have a separate Will drafted in the foreign country where the assets are located.

Pros of separate/multiple Wills

We advise having separate Wills when a client owns assets in a foreign country for a number of reasons:

• It can help limit costs of probate fees and estate costs;

• To ensure that clients receive proper advice regarding estate planning in other regions in which they hold assets (taxes, automatic succession [forced heirship, discussed further below], if applicable and/or estate peculiarities);

• Assists in avoiding potential legal complications and conflicts between different legal systems. Administration of estates and associated processes differ from country to country (for example, attendance at the local Court in person to lodge documents is often required);

• For the sake of expediency. South African estates with offshore assets generally take approximately 3 (three) years plus (or longer with complex estates) to wind up. A South African estate would have to reach a certain point in the estate process (approximately 6 [six] to 12 [twelve] months) before the foreign estate could be commenced. The foreign estate will then run, and eventually link up with South Africa estate;

• To sidestep avoidable delays. A number of Court stamped, notarised and/or apostilled documents are generally required during the administration process, which inevitably causes additional estate charges and delays;

• By having a separate offshore Will, one ensures that the foreign estate is administered at the same time as the South African estate, which limits delays in the winding-up process. The nominated South African executor will then be able to obtain a grant of probate that authorises him/her to deal with the foreign estate. There is typically no need for the executor to obtain a Letter of Executorship from the Master of the High Court, as this is normally needed when there is only one Will dealing with the worldwide estate; and

• An executor may be unable to deal with assets outside of South Africa without first obtaining the authority to do so from officials in the jurisdiction where the assets are situated. The process of obtaining said authority can be time consuming and expensive. Some countries do however recognise the appointment of a South African executor without further formalities needing to be complied with.

Cons of separate/multiple Wills

• There may be potential issues connected to the payment of debts and/or taxes incurred in different jurisdictions;

• The necessity of covering all contingencies within the Will, specifying the property and assets held in each specific jurisdiction;

• 1 (one) Will promotes simplicity and certainty in one’s estate planning. Therefore having separate/multiple Wills can increase the risk of accidental revocation;

• The 2 (two) Wills need to be carefully drafted to operate alongside one another failing which there could be unfortunate consequences;

• Drafting an offshore Will can be an expensive upfront exercise; and

• A testator is typically required to appoint an executor/s in each jurisdiction where they have a separate Will.

Freedom of testation vs forced heirship

Freedom of testation in South Africa is a fundamental principle of the law of succession that allows an individual to distribute their assets in their Will as they deem fit.

Forced heirship is a set of rules which limit a testator’s freedom of testation.

Some countries do not recognise the freedom of testation and hold particular inheritance laws that override specific intentions of a deceased. Generally, a part of the estate is subject to the laws of forced heirship and the balance is left to be distributed in accordance with a testator’s wishes.

Forced heirship laws vary from country to country and are mostly prevalent among civil law jurisdictions, for example in France, Japan, Mauritius, Portugal, Spain and Switzerland as well as countries that operate under Shariah law. 

Estate duty and tax liability

Section 3(1) and (2) of the Estate Duty Act 45 of 1955 (“the EDA”) stipulate that an individual’s estate consists of all property of an individual at the date of his/her death as well as property that is deemed to be his/hers in accordance with the provisions of the EDA.

“Property” in this instance refers to any right in or to property whether movable or immovable, corporeal or incorporeal and wherever situated.

All of a deceased individual’s assets, whether located in South Africa or abroad, are included when calculating estate duty, unless the asset falls within the list of exclusions set out in Section 3(2). According to this Section, assets that are not included are immovable property (and any associated right thereto) and movable property situated outside South Africa, where the deceased is not ordinarily resident in South Africa at the time of death.

Accordingly, if you are a permanent resident of South Africa, your worldwide assets are subject to both estate duty and capital gains tax. You are still required to declare foreign assets for estate duty purposes, even if you have a separate offshore Will in place. These offshore assets may also be subject to inheritance tax based on the countries where they are located (referred to as situs tax).

Section 4(e) of the EDA provides further relief and goes on to list instances in which the value of foreign property may be deducted from the gross value of an estate of a deceased person for estate duty purposes.

The fact that any foreign asset of a deceased individual is regarded as property under the EDA and is therefore subject to estate duty in South Africa does not prevent another jurisdiction from imposing its own duty on that same asset under its own legislation. It is therefore important to consider the real and expensive risk of double taxation.

If South Africa does not have a double taxation agreement with the country in which the foreign assets are held, a single asset may be taxed twice for estate duty purposes. To address this, the Act makes provision for the deduction of foreign death duties paid on assets located outside South Africa that are included in the South African estate of a person who was ordinarily resident in South Africa.

Important considerations

A separate Will is almost always recommended if immovable property is owned in a foreign country. Immovable property will need to be transferred according to the laws of the specific country. Although rare, some countries only recognise a locally drafted Will when it comes to disposing of immovable property and your South African Will may, therefore, be disregarded.

It should be noted that if the offshore assets are foreign investments administered by a South African institution, there is no need to prepare a separate Will as the South African executor will be entitled to deal with these assets.

If you decide to have multiple Wills, each Will should ideally specify that it is in respect of, for example, your South African estate only and your Netherlands estate only. If this is not specified, your Will shall automatically be deemed as a worldwide Will.

If you have already drafted a Last Will and Testament, and only thereafter acquire assets in a territory outside of South Africa, you can simply prepare a Will in the other territory/ies, which solely refers to that territory. This will result in the territory-specific Will automatically superseding the worldwide Will.

A testator of multiple Wills must ensure not to revoke a Will related to another jurisdiction and vice versa, especially when regularly updating Wills as a result of life changing events.

One also needs to consider testamentary freedom and spousal regimes in the specific territory/ies where assets are located as well as local inheritance laws and regulations.

If you own assets in a country with forced heirship laws, it is best to have a separate Will for those foreign assets. Each country’s forced heirship rules are unique and we advise that you consult with a local expert in that country.

Countries that observe common law and as such, have inheritance laws similar to South Africa, where a worldwide Will would generally be valid:

Australia, Bahamas, Canada (except Quebec), Cayman Islands, England, Fiji, Ghana, India (except in Goa, Daman, Diu, Dadra, and Nagar Haveli), Jamaica, New Zealand, Pakistan (with some provisions of Islamic law), Uganda, United States, United States (except Louisiana and Puerto Rico) and Wales.

Countries that observe civil law and as such, differ from South African inheritance laws, which typically require an offshore Will:

Austria, Belgium, Brazil, Canada (certain parts), China, Croatia, Cyprus, France, Germany, Greece, India (only the State of Goa and Union Territories of Daman, Diu, Dadra and Nagar Haveli), Italy, Mauritius, Mexico, Mozambique, Portugal, Spain and Switzerland.

Conclusion

It is important to note that there is no one-size-fits-all method when determining whether a worldwide Will is appropriate for your unique circumstances. Estate planning is a complex and emotionally taxing process that requires comprehensive knowledge of the law.

Our offices offer Wills and Estates related legal services and guidance to ensure that your Will is drafted in compliance with the specific associated law and that estates are managed efficiently and in line with the legal aspects of winding up of estates. For assistance contact us on info@rouxlegal.com and book a consultation with our expert team.

By Storm Roux

(Senior Associate)

04 December 2025

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