A testamentary trust, often referred to as a mortis causa or Will Trust, is created through your Last Will and Testament and only comes into existence after your death. While there is ongoing debate as to whether such a trust falls under the law of succession or contract, one thing is clear: the executor plays a pivotal role in transforming your written intentions into a functioning legal structure.

Why a testamentary trust matter
A testamentary trust is designed to safeguard assets specifically for minors or individuals who are unable to manage their own finances.  

This is a valuable instrument to ensure your children’s well-being and financial stability.

A testamentary trust comes into existence when the testator passed away and there is no need to register a trust prior to death if the main cause and use of the trust is for the protection of the inheritance of your heirs.

From will to working trust
The trust is relatively simple to set up, although your executor must make sure that all the relevant forms and requirements by the Master of the High Court are met to get the trust registered. The beneficiaries of a testamentary trust can only benefit from the trust once it is registered and the distribution from the estate is made.

The provisions of the trust are an important part of your Last Will and Testament and must be clear without any uncertainties.  The testator must be clear regarding the powers of the trustees and the objectives of the beneficiaries.

There is thus no separate document besides the Last Will and Testament, which will serve as your trust deed.   Once the Master of the High Court is satisfied, Letters of Authority are issued, enabling the trustees to begin administering the trust for the maintenance and benefit of the beneficiaries. After the estate administration is finalised, the testamentary trust functions as an independent legal entity.

Choosing the right trustees
Trustees carry a significant responsibility.  They must be individuals who are trustworthy and responsible and who adhere to your instructions in your Last Will and Testament.  All trustees are required to comply with the provisions of the Trust Property Control Act. However, it is advisable to appoint at least one suitably qualified professional trustee to ensure proper administration of the trust.

Advantages
Testamentary trusts offer several notable benefits:

• Tax efficiencies, depending on structure and distributions
• No transfer duty on immovable property transferred from the deceased estate to the trust
• Asset protection for beneficiaries
• Wealth preservation and growth across generations, with no fixed termination date unless specified

In addition, capital distributions from South African testamentary trusts to non-resident beneficiaries may be remitted abroad, provided the trustees pass a resolution confirming the distribution and the Will clearly entitles the beneficiary to such capital.

A testamentary trust is more than a legal mechanism, it is a strategic planning tool that safeguards your legacy and protects those who matter most. With no cost during your lifetime and significant benefits after your death, it offers peace of mind and financial security for your loved ones.

Consult with your legal or fiduciary advisor to determine whether a testamentary trust is appropriate for your estate plan. Every family and business has unique dynamics, and careful planning today ensures clarity, continuity, and confidence tomorrow.

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).