Global assets, local laws
For many South Africans, “diversification” has become essential to long‑term wealth preservation. Moving assets offshore may hedge against currency volatility, but it also introduces a different risk: legal complexity at death.
A common misconception is that a standard South African will automatically covers all assets worldwide. While technically possible, relying on a single will for a global estate can create significant logistical delays, unintended revocation issues, and avoidable tax consequences. Here’s what testators and heirs need to know to ensure an international legacy transfers as smoothly as intended.
The ‘one will’ myth vs. separate offshore wills
Can a South African will govern your apartment in London? Yes.
Is it advisable? Rarely.
A single “Worldwide Will” must be recognised in every jurisdiction where you own assets. In practice, this means:
1. The executor first obtains Letters of Executorship from the South African Master of the High Court.
2. Only then can they apply for a Grant of Probate (UK) or equivalent authority abroad.
This sequential process creates a bottleneck. Any delay at the Master’s Office freezes the offshore estate, often for months.
The more efficient solution is an Offshore Will, a separate offshore will dealing only with assets in a specific foreign jurisdiction. This allows the South African and offshore estates to be administered concurrently, dramatically reducing delays and administrative friction.
Freedom of testation vs. forced heirship
South Africa recognises broad freedom of testation, and although not absolute, in principle, you may leave your assets to whomever you choose.
However, many civil‑law countries, including France, Portugal, Italy, and Mauritius, apply forced heirship rules. These laws automatically reserve a portion of your estate (often immovable property) for your spouse or children, regardless of your wishes.
Fortunately, the EU Brussels IV Regulation (EU Regulation 650/2012) offers an elegant workaround for assets in EU countries. It allows individuals to elect the law of their nationality, such as South African law, to govern the succession of those assets. But this is not automatic:
If your will does not explicitly make this election, local forced‑heirship rules may apply by default.
The double taxation trap
South African tax residents are subject to Estate Duty on worldwide assets. But offshore assets may also attract inheritance or estate tax in the jurisdiction where they are located.
For example:
- A US share portfolio may be subject to US estate tax.
- A UK property may attract UK inheritance tax.
This creates a risk of double taxation.
South Africa has Double Taxation Agreements (DTAs) with several countries, including the UK and the US, designed to prevent being taxed twice. Typically, they allow a credit for foreign tax paid against the South African Estate Duty liability.
However, these tax credits are not automatic. Correctly applying them requires careful documentation and precise calculations by the executor – another reason specialised cross‑border planning is essential.
Accidental revocation: A hidden danger
Most will templates contain a standard revocation clause:
“I hereby revoke all previous wills…”
When multiple wills are involved, this wording can be disastrous. Signing a new South African will may unintentionally revoke your offshore will, or vice versa.
The remedy is ring‑fencing:
- The South African will should state that it applies only to South African assets.
- The offshore will should state that it applies only to assets in that specific jurisdiction.
This ensures that each will stand independently without unintended overlap.
Cross‑border estate planning is not a DIY exercise. Navigating South African Estate Duty, foreign inheritance tax, and conflicting legal frameworks requires specialist guidance. For testators, the cost of drafting a proper offshore will is minimal compared to the expense and delays of an international probate dispute. For heirs, clarity is the most valuable inheritance of all.
If you would like expert assistance, our Estate Planning Team is experienced in international estate planning and is available to review your global estate structure and ensure your offshore assets are protected and efficiently transferred.
Disclaimer: This article is the personal opinion/view of the author(s) and does not necessarily present the views of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever, and no action should be taken on the basis thereof unless its application and accuracy have been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken based on this content without further written confirmation by the author(s).
