One in ten South African deceased estates that come across our table for administration have a significant component of off-shore assets that must to be included in the administration of the estate. With South Africans expanding their asset based internationally, we only foresee this increasing as more and more South Africans own and invest in off-shore assets.

Yet many have not considered how these off-shore assets affect the administration of their estate upon their death. Accordingly, we thought it important to highlight a few aspects that should be considered if you own or are planning of own any off-shore assets. 

The first aspect that should be noted is that the rules of each jurisdiction in which your assets are situated may differ and you would need to obtain advice in respect of the rules of each jurisdiction, as the rules and limitations applicable in each jurisdiction can cause difficulties with the administration of your estate. 

In some countries the freedom of testation that we enjoy in South Africa does not apply. This means that the inheritance laws in that jurisdiction will override the intentions of the deceased in what is known as ‘forced heirship’. The forced heirship rules of each country in which your assets are situated will then prescribe how the assets must be treated on death.

This makes the process of administering your estate in more than one country a complex matter. After death your family will consult with your executor in South Africa to prepare and sign the documents to report the estate at the Master of the High Court. During this process the offshore assets will be confirmed and your executor will have to establish whether you have an off-shore will or whether your South African will covers your worldwide assets. In the event that there is not an off-shore will, your executor will have to obtain the formal death documents signed and sealed by the Master of the High Court in South Africa and appoint an agent who has jurisdiction in the country where your off-shore assets are situated. This process is often referred to as probate and can be quite a lengthy process. In some circumstances the documents may even have to be translated.

The best solution is to have separate wills for each jurisdiction, but even this may not necessarily guarantee a simple and smooth administration process. If the South African will is not aligned with the off-shore will, the wills could unintentionally revoke or replace each other. 

A last important consideration is the tax liabilities of an estate with off-shore assets. If you reside in South Africa, your worldwide estate is liable for estate duty. Double taxation may be applicable if the same assets of the deceased are subject to estate duty in South Africa as well as the equivalent thereof in the foreign country. South Africa has entered into estate duty agreements to avoid double taxation with certain countries and it may be important to beforehand ascertain which countries have such agreements in place with South Africa and what the details of such agreements are as not all double taxation agreements contain the same provisions.

The above should highlight some of the complexities relating to the owning of off-shore assets and how this may affect the administration of your estate upon your death. Our advice is firstly to obtain the assistance of a professional estate planner that understands how to integrate your local and off-shore estate planning effectively, and secondly, to ensure that you appoint executors with experience in administering estates with off-shore assets as otherwise the winding up of your estate on your death could cause your loved ones great frustration and even financial pain. 

If you are in a situation where you have or are considering owning off-shore assets or are concerned that your estate doesn’t correctly cater for this, don’t hesitate to give our fiduciary team a call and let us help give you peace of mind. 


Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that 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 has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s).