Written by Roy Bregman,
admitted attorney with over 51 years' experience in wills and deceased estates.
Last updated: 15 October
2026
|
Key Takeaways •
A South African executor has no automatic power
over assets abroad. Each foreign country usually requires its own local court
process before a bank or property registry will release anything. •
If the deceased was ordinarily resident in South
Africa, the estate must declare assets worldwide, and estate duty and capital
gains tax can apply to foreign property, with relief for foreign death taxes
paid. •
Land follows the law of the country where it is
situated, while money and shares usually follow the law of the deceased's
permanent home country. •
A separate, carefully worded will for each country,
which does not cancel the South African will, is the best way to save your
family time and money. |
More South
Africans than ever own something overseas: a flat in London, a share portfolio
in Europe, a pension in Australia or a bank account opened for a child studying
abroad. When the owner dies, the family often discovers that the South African
executor cannot simply phone the foreign bank and ask for the money.
This guide
explains how foreign assets are handled when a South African estate is wound
up, what the courts have said recently and what you should do. It also covers
foreigners who die owning property here.
Can a South African executor deal with assets overseas?
No, not on
their own authority. The Letters of Executorship issued by the Master of the
High Court, the official document appointing the executor, are only recognised
inside South Africa. A bank in England or a land registry in Portugal will want
an appointment made or recognised under its own law.
A country's
legal power stops at its borders (called territoriality). The executor must
still list foreign assets in the estate inventory, but someone recognised
abroad has to collect them.
The two ways to unlock foreign assets
The first is resealing,
where a foreign court stamps the South African appointment so that it also
works there. Only some countries, mostly with British links, allow this. The
more common route is to appoint a local lawyer to apply for probate, the
foreign court's confirmation of the will and of who may deal with the estate.
Which country's law decides who inherits foreign assets?
It depends on
the type of asset. Our courts use rules known as the conflict of laws to decide
which country's law applies.
Land and buildings follow the law of the country where they are
Immovable
property, meaning land and anything built on it, is governed by the law of the
place where it is situated. Lawyers use the Latin term lex situs, which
simply means "the law of the place where the property is". If that
country has forced heirship rules, which reserve a fixed share for children,
those rules can override what your will says.
Money, shares and other movables follow the deceased's home country
Movable
property, such as bank balances, shares and vehicles, is generally governed by
the law of the deceased's domicile at death. The Latin term is lex domicilii,
meaning "the law of the person's permanent home". Domicile is the
country a person regards as their permanent home, which is not always where
they happen to be living.
The marriage question
Before the
estate is valued, you must separate the deceased's share from the surviving
spouse's share. That depends on which country's marriage property law applies,
a rule that changed in 2026.
Quick comparison: who does what?
|
Situation |
Who must
authorise the process |
Which law
decides inheritance |
What is
usually needed |
|
South African
resident owns land abroad |
Court or
registry in the foreign country |
Law of the
country where the land is |
Local lawyer and
a foreign grant, or resealing |
|
South African
resident owns foreign bank accounts or shares |
Foreign bank or
court, under local rules |
Usually South
African law, as the home country |
Foreign grant or
the bank's own small-estate procedure |
|
Foreign
resident owns land in South Africa |
South African
Master of the High Court |
South African
law, for the land |
New appointment,
or signing and sealing of foreign letters |
|
Foreign
resident owns only movables in South Africa |
South African
Master, using a simplified procedure |
Law of the
deceased's home country |
Affidavit and
proof that local creditors are protected |
What happens when a foreigner dies owning property in South Africa?
Nobody may deal
with the South African assets without the Master's authority. Section 13 of the
Administration
of Estates Act 66 of 1965 prohibits winding up an estate here except under
letters issued or recognised by the Master.
Where the
foreign executor was appointed in a proclaimed country, a short list that
includes the United Kingdom, Ireland, Namibia, Botswana, Zimbabwe, New Zealand
and certain Australian and Canadian states, the Master can sign and seal
the foreign letters under section 21. This gives them the same effect as a
South African appointment. For all other countries, a fresh application for
appointment is needed.
An executor
living abroad must choose a domicilium citandi et executandi, which
simply means an official South African address where legal notices can be
delivered. The Master may also require security, a guarantee bond that protects
the estate against loss. If the deceased left only movable property here,
section 25 allows a quicker procedure, provided local creditors are not
prejudiced.
Does SARS tax foreign assets in a South African estate?
Yes, if the
deceased was ordinarily resident in South Africa at death. Assets are included
in the estate wherever they are situated. Estate duty is charged at 20% on the
dutiable estate up to R30 million and 25% above that, after a R3.5 million
deduction known as the abatement.
Some foreign
assets may be excluded, for example those acquired before the person first
became ordinarily resident here or inherited from someone who was not resident
here. Where foreign death duties were paid on the same asset, a rebate (a
credit against South African duty) is available. Capital gains tax on death
also applies to worldwide assets, and exchange control rules govern how money
comes home or goes to heirs abroad.
What have the courts said recently about foreign assets in estates?
Our courts
respect the home country's role while protecting South African creditors and
heirs. No Supreme Court of Appeal or Constitutional Court judgment in the last
three years deals squarely with foreign assets in a deceased estate, but these
decisions show the courts' approach.
Scheer v
Wagner N.O. and Others [2026] ZASCA 32
Mr Scheer,
domiciled in Austria, was declared insolvent in both Austria and South Africa.
His South African estate would show a surplus after local creditors were paid,
while Austrian creditors were owed more than €4.4 million, about R81 million.
The Austrian trustee asked for the surplus to be sent to Austria.
The Supreme
Court of Appeal agreed. Recognition rests on comity, the mutual respect
courts show each other and is only available where the person was domiciled in
the foreign country. Local creditors are paid first, then the balance goes
home. The same principles guide cross-border deceased estates.
Ebeling v
Koch and Others [2025] ZAWCHC 59
Mrs Ebeling's
will dealt with her South African estate, and she also had a substantial estate
in Germany. Her adopted daughter alleged that two German residents had taken
about R1.4 million from her bank account, partly to buy a property in Mossel
Bay.
A full bench of
the Western Cape High Court held that she could sue as a potential heir, even
with no executor in office, and confirmed the attachment of the Mossel Bay
property. Attaching property here gives a South African court power over people
living abroad.
Brand v D.B
and Another [2026] ZAWCHC 216
The deceased
had transferred six apartments in Munich to his son, and his estranged wife
challenged those transfers in the German courts. She then asked the South
African court to remove the executor, partly because he had opposed her German
litigation.
A full bench
set aside the removal order. The German courts had ruled against her, so the
executor's stance was reasonable and had been vindicated. Hostility between an
executor and an heir is not, on its own, a reason to remove an executor.
N.P. v
Minister of Justice and Constitutional Development and Others [2026] ZAWCHC 343
This judgment
declared unconstitutional the old rule that a marriage's property consequences
are decided by the husband's domicile when the couple married. The court
replaced it with a sex-neutral test: the law the couple chose, failing which
their common domicile, habitual residence, nationality or closest connection.
The new rule
does not apply to marriages already ended by death or divorce before 23 June
2026, and steps already taken under the old rule stand. It is a High Court
ruling, so watch for any appeal. It will matter for estates where a spouse dies
in future.
What should you do if a loved one left assets overseas?
Find out
exactly what exists and where, then let your attorney coordinate each country:
1.
List every foreign
asset. Record the country, type, institution and estimated value, using
bank statements, share certificates and title deeds.
2.
Find every will.
Ask whether the deceased signed a will abroad. Check whether a later foreign
will contains a clause cancelling "all previous wills", as this can
unintentionally cancel the South African will.
3.
Report the estate to
the Master. The inventory must include the foreign assets, even though they
will be dealt with abroad.
4.
Appoint a lawyer in
each foreign country. Your attorney can instruct them to reseal the South
African appointment or apply for a local grant.
5.
Deal with tax on
both sides. Keep proof of any foreign death taxes paid, so that a rebate
can be claimed against South African estate duty.
6.
Bring the proceeds
home or pay heirs abroad. Funds move through an authorised dealer (a bank
approved by the Reserve Bank), and the final figures go into the Liquidation
and Distribution account, the executor's final statement of the estate.
How can you protect your family from a cross-border estate headache?
Plan now. If
you own assets abroad, sign a separate will for each country, drafted to work
alongside your South African will without cancelling it. Keep a simple register
of your foreign assets with your will, and review both whenever you buy, sell
or move.
If you are
already administering an estate with foreign assets, early advice saves months
of delay and brings the estate to a proper close.
Frequently asked questions
Do I need a separate will for assets overseas?
It is strongly
recommended. A South African will can cover worldwide assets, but foreign
courts may require local formalities, and land follows the law of the country
where it is situated. A separate will for each country, drafted so that it does
not cancel your South African will, usually speeds up the process and reduces
costs for your heirs.
Can a South African executor sell property overseas?
Not on the
strength of South African Letters of Executorship alone. The executor must
first be recognised in that country, either by having the South African
appointment resealed, where the country allows it, or by a local lawyer
obtaining a grant from the foreign court. Only then will a foreign land
registry accept a sale or transfer.
Is estate duty payable on foreign assets in South Africa?
Yes, if the
deceased was ordinarily resident in South Africa at death, foreign assets form
part of the estate for estate duty. Duty is 20% up to R30 million and 25% above
that, after a R3.5 million abatement. Certain foreign assets are excluded, and
foreign death duties paid on the same assets can be credited against South
African duty.
How long does it take to wind up an estate with foreign assets?
Expect longer
than a purely South African estate. A local estate often takes nine to eighteen
months, and each foreign country adds its own court process, tax clearance and
banking checks. Starting the foreign applications early, while the South
African estate is reported, is the most effective way to avoid unnecessary
delays.
What happens if a foreigner dies owning property in South Africa?
The South
African Master of the High Court must authorise anyone dealing with the
property. If the foreign executor was appointed in a proclaimed country, such
as the United Kingdom, the Master can sign and seal those letters. Otherwise, a
new South African appointment is needed, usually through a local attorney
acting under power of attorney.
Need help with foreign assets in an estate? Talk to us today
Whether you are
an executor, an heir or a business owner planning ahead, we will coordinate
every country involved so that your family is not left waiting. Since 1974,
Bregman Moodley Attorneys Inc. has been taking the sting out of legal problems,
and your first consultation is free and without obligation.
•
Call: +27 (0)11 646
0335
•
Email: roy@bmalaw.co.za
•
Website: www.bregmans.co.za
•
Visit: Suite 316,
Killarney Mall, Riviera Road, Killarney, Johannesburg
Bee at Ease! Contact us today and let us take the sting
out of your cross-border estate.
This article is general
information and not legal or tax advice. Please consult an attorney about your
specific circumstances.
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