By December every year, someone in Midstream or Sandton has been told at a braai that they “must put everything in a trust”. Sometimes that is good advice. Often it is a product looking for a buyer.
A will and a trust are different instruments. Most families we see at the Irene office need a valid will first. Some also need a testamentary trust for minor children. A smaller group — typically with a business, a second property, or a genuine continuity problem — needs a living (inter vivos) family trust.
This article sets out the distinction so you can have a useful first meeting. It is not tax advice.
What a will does
A will speaks when you die. It appoints an executor, says who inherits, and can create a trust that only comes into existence after death. If you die without a valid will, the Intestate Succession Act 81 of 1987 decides. That Act is not a family discussion.
A will does not protect assets from your creditors while you are alive. It does not keep the house out of your deceased estate by magic. It is still the document most people in Centurion and Pretoria East are missing, or holding in a form that would fail the Wills Act formalities.
What a living trust does
An inter-vivos (living) trust is created during your lifetime by a trust deed, registered with the Master of the High Court, and funded by transferring assets into it. Once it is properly set up and funded:
- the trustees (not you personally) control those assets according to the deed;
- those assets generally do not form part of your deceased estate (if the structure is real, not a sham);
- the trust continues after your death.
It is governed by the Trust Property Control Act 57 of 1988. It needs at least the founder, trustees, beneficiaries, a deed worth the paper, Letters of Authority from the Master, and — once it holds assets — tax registration and annual administration.
That last sentence is why a trust is not “set and forget”.
What a testamentary trust does
A testamentary trust is written into the will. It is born when you die. It is the usual tool where there are minor children, a beneficiary who cannot manage money, or a wish to stagger inheritance to ages 21 and 25 rather than dump a paid-up house on an 11-year-old.
It is cheaper to create than a living trust because it rides on the will. It does not protect your assets while you are alive, and estate duty (if it applies) is dealt with in the deceased estate before property moves into that trust.
For many Irene and Midstream parents of school-age children, this is the trust they actually need.
Cost is not a footnote
A properly drafted living trust is not a weekend special. Setup commonly runs into the tens of thousands of rand once you count the deed, registration, and the advice that should happen before the deed. Then there are annual accounting, trustee decisions, and the tax cost of getting assets in (donations tax and capital gains tax are the two that surprise people who only heard “estate duty saving”).
A will is a once-off professional fee. If the estate is not large enough for the trust’s ongoing cost to be justified, the trust is an expensive filing cabinet.
Industry commentary often puts the “this might be worth modelling” zone at substantial estates — frequently discussed in the multi-million-rand range, not a single primary residence with a bond. We model it on your numbers, not a round figure from the internet.
A simple decision frame
Start with a will if you need to name an executor, guardians for minor children, and heirs.
Add a testamentary trust if those heirs cannot take outright.
Consider a living trust if you have a commercial reason: a business that must continue, a family that must hold an asset across generations, a genuine asset-protection analysis that survives a conversation about donations tax — not a rumour.
A living trust does not replace a will. You still die with personal odds and ends, and you still need an executor.
How we advise
Boshoff & Smith drafts wills, testamentary trusts and inter vivos trust deeds, and lodges with the Master. We will tell you if a trust is the wrong spend. That is the advice worth paying for.
Consultations at Southdowns Ridge Office Park, Irene, for clients across Pretoria, Midstream, Sandton, Rosebank and Randburg.
Book a consultation: +27 12 003 3300 · WhatsApp +27 60 991 9520 or +27 76 531 4065 · info@boshoffsmith.co.za
General information, not tax or legal advice. Trust and estate-duty rules change. Have a deed and a will reviewed against your current assets and family.
