There are two key reasons why ex-South Africans should get an Australian Will.

The first key reason is to avoid unnecessary delays when obtaining a Grant of Probate in Australia and a Letters of Executorship in South Africa.

Most South African couples have one original Will (for both of them) that was prepared according to the South African laws. However, in Australia, the laws for Wills are different and it is preferred that every person has their own original Will. When a person dies in Australia, the original Will is submitted to the Supreme Court of the relevant state in Australia. The Supreme Court keeps the original Will and issues a Grant of Probate which has a photocopy of the Will attached.  Problems can arise if the Master of the High Court in South Africa needs the original Will before they will issue a “Letters of Executorship” to the Executor.

Apart from the complication of the original Will being held in a Supreme Court in Australia, it is also the only original Will for the surviving spouse. One can imagine the problems that will occur when the surviving spouse dies years later (assuming no new Will is prepared), and the family then have to deal with the spouse’s assets in Australia and South Africa without having an original Will.

Such complications can incur considerable legal fees for the estate, both in Australia and in South Africa before all the matters are resolved. And thereafter, it takes approximately 2 years in South Africa before an estate is finalised.

The second reason to get an Australian Will relates to Estate Duty requirements payable in South Africa. There are no Death Duties payable on the estate of a deceased person resident in Australia. There is however some tax payable but the amount of tax depends if the income received or the transaction undertaken was carried out by the Executor or a beneficiary of the estate.  However, according to the South African Revenue Service (SARS), an ‘Estate Duty’ of 20% is levied against the dutiable amount of the estate that exceeds R3 500 000 (current as at 2014) of the net value of the estate.  While most ex-South Africans living in another country may no longer qualify as ‘residents’ of South Africa, according to SARS, it appears that ‘the calculation of Estate Duty is the same for both residents and non-residents’ of South Africa.

A simple solution to deal with the two key issues is for the ex-South African to get an Australian Will to deal with their Australian assets and also a South African Will that deals only with their South African assets. However, a word of caution, if the Wills are not drafted properly, the later Will could nullify the other one.

Ex-South Africans living in Perth, Western Australia that want to discuss their Wills and other Estate Planning requirements can contact Shirley at shirley@sbtlegal.com.au to discuss this matter further.