Guardianship and Estate Planning for Single Mothers
Key takeaways
If you are your child's sole guardian, you may nominate a person in your will to become the child’s guardian after your death. The nomination takes effect only on your death and if the nominated person accepts the appointment. The High Court retains the power to intervene where this would not be in the child’s best interests.
Minor children (children under the age of 18) generally cannot administer inherited assets in their own names. If your will says nothing, it usually goes to the Guardian's Fund, administered by the Master of the High Court.
A testamentary trust is an instruction in your will that lets people that you trust safeguard your children's inheritance.
Guardianship and estate planning have legal consequences. It may help to seek professional advice.
According to Stats SA, Almost half of South African children, (46%), live with their mothers only. This suggests that many women are likely to carry the day-to-day caregiving and financial coordination responsibilities, making the consequences of dying without a will especially significant.
This guide is brought to you by Sanlam to help parents understand how guardianship and estate planning work in South Africa.
Why is legal planning often left unspoken?
Talking about dying can sometimes feel like we are tempting fate. In the 2025 Sanlam Legacy Wills Survey, 33% of people who had never discussed death with their families said they did not want to make anyone uncomfortable, and 43% of those without a will thought they did not own enough assets to need one.
A will is not only about what you own. It is also about leaving instructions, such as who raises your children, and who looks after the money meant for them, following your passing.
How does legal guardianship work in South Africa?
Guardianship is not quite the same as day-to-day parenting. A child may live with someone who takes care of the child, while a different person serves as guardian for legal and property-related matters. Guardianship is the legal authority to manage and protect a child’s property, represent them in legal or administrative matters, and give consent for certain important decisions – such as applying for a passport (the Children’s Act sets out these responsibilities).
If you are your child’s sole guardian, in your will you can name an appropriate person to become their guardian when you pass away. That appointment takes effect only after your death, and once the person accepts the appointment.
If the child’s other parent is also a guardian, they would ordinarily continue in that role. Naming someone in your will is still valuable though, as it clearly records your wishes. A person who is not already a natural guardian can only be formally appointed as a guardian by the High Court, which must act in the child’s best interests.
What happens to your children's inheritance if there is no trust?
Children under 18 are not allowed to manage their own inheritance. Unless your will provides otherwise, inheritance left to a minor child is usually paid into the Guardian's Fund, run by the Master of the High Court.
A guardian can then apply to the Guardian’s Fund for money to meet a child’s maintenance needs, including school or university fees, clothing, medical costs, boarding and other necessary expenses. The Master of the High Court can approve payment of the interest earned on the money, as well as a portion of the capital.
The practical catch is that this is not automatic access to money, and a guardian must submit a formal application and supporting documents, such as quotes and accounts, to motivate the expense. It also means the money may not be there when it's needed most. What’s more, money that remains unclaimed for 30 years from the date on which the person became entitled to claim it is forfeited to the State.
The process can be time-consuming and difficult, which is why many parents look for ways to give their children more certainty - and easier access to the financial support they need - if they are no longer there.
What is a testamentary trust and how does it work?
A testamentary trust is a set of instructions inside your will. It only comes into existence when you die.
Your executor administers your estate, settles liabilities and transfers trust assets to the trustees in accordance with the will. Your will also doubles as the trust document, there is no Master's fee to register it, and trustees need the Master's written permission, called letters of authority, before they can act.
This table gives you some side-by-side analysis of commonly asked questions to help you understand the difference between having a testamentary trust and leaving it up to the Guardian’s Fund.
What to think about | Guardian's Fund | Testamentary trust |
How it happens | Automatically, if your will says nothing else | Because you provided for it in your will |
Who looks after the money | The Master of the High Court | Trustees you chose, once their appointment has been approved by the Master |
Whether your wishes count | The law decides, not you | You can say what the money is for and when the testamentary trust ends |
Getting money out | A formal application with documents | Trustees follow your instructions, within the law |
What it costs | No Master's fee for the Guardian’s Fund itself | No separate fee is generally payable to establish a testamentary trust under a will, although professional, administrative and trustee fees may arise |
The main trade-off | Less flexibility, and paperwork each time | It only works as well as the trustees that you pick and the stipulations for the trust that you set out in your will |
What are the risks, limitations and trade-offs?
Naming a guardian is not the last word. If someone objects, the High Court may get involved.
A will needs to be in writing and signed by the testator and two competent witnesses.
Trustees need the Master's written go-ahead, must keep records, and professional trustees charge fees.
If most of what you own is a house, there may be little cash available while the estate is being wound up.
A guardian you named years ago may no longer be the right person or may no longer be willing to accept the appointment.
It is important to review your will regularly as your wishes and/or circumstances may change over time.
Next steps you may want to consider
It may help to read up on what wills, trusts and estates planning involves.
You may want to have a conversation with the person(s) you would like to name as your child’s guardian.
Consider jotting down what your children would inherit, including life policies and retirement fund money, and who is named to receive it before speaking with an attorney or a financial advisor.
You could read more about how family structure affects your will.
Consider speaking to a financial adviser or your attorney.
This is for general information and education purposes only and does not constitute financial advice. For personal recommendations, speak to a financial adviser.
Frequently Ask Questions
Is estate planning the same as a will?
Not quite. Your will is one document. Estate planning is the bigger picture, including what you own, who gets it, who looks after your children and how the costs get covered.How do I give legal guardianship to someone in South Africa?
The law lets you name a person in your will if you are your child's only guardian. It only applies after you have died, and only once that person accepts the appointment.What is a testamentary trust?
Instructions in your will that create a trust when you die.How do I set up a testamentary trust?
Broadly, your will needs to say that the trust exists, what goes into it, who runs it, who benefits, what the trustees may do and when it ends. The trustees then apply to the Master for letters of authority. The law requires specific wording to be used so it is recommended that this be drafted by a professional.What are the main types of trusts used for children?
There are two you are likely to hear about. A living trust, also called an inter vivos trust, is set up while you are still alive. A testamentary trust is created by your will when you die.
Key terms explained
Guardian: The person legally responsible for a child's property and legal matters, and for giving the consent the law requires, like signing off a passport application.
Testamentary trust: Instructions in a will that create a trust when the person who wrote the will dies.
Trustee of testamentary trust: The person or company that the Master of the High Court approves to look after assets held in trust for the children, following your instructions and the law.
Executor: The person who wraps up your affairs after you die, including gathering what you owned, paying what you owed and handing over what remains to the beneficiaries.
Guardian's Fund: A fund, administered by the Master of the High Court, that holds and invests money for children and others who cannot manage it themselves yet.
Master of the High Court: The office that deals with deceased estates, trusts and the Guardian's Fund.
Intestate: Dying without a valid will. The law then decides who inherits the deceased estate.
Letters of authority: The written permission the Master gives to trustees. Without it, a trustee cannot act.
Sources and further reading
“Children’s Act 38 of 2005”, South African Legal Information Institute (SAFLII). Available at: https://www.saflii.org/za/legis/consol_act/ca2005104/saflii.org
“Guardians and Custodians / Guardian’s Fund”, Department of Justice and Constitutional Development. Available at: https://www.justice.gov.za/master/guardian.htmljustice.gov.za
“What is the Guardian’s Fund?”, South African Government. Available at: https://www.gov.za/faq/justice-and-crime-prevention/what-guardian%E2%80%99s-fundgov.za
“General Household Survey 2025”, Statistics South Africa (Stats SA). Available at: https://www.statssa.gov.za/publications/P0318/GHS%202025%20Presentation.pdfstatssa.gov.za
“2025 Sanlam Legacy Wills Survey”, Sanlam. Available at: https://assets.ctfassets.net/irc191ur4uh4/6ROmQMgr4RvrMNeS9OdYJK/12823c15275db9252cf6fc66aad5d670/Sanlam_Legacy_2025_Survey.pdfsanlam.co.za
“Set Up a Trust in South Africa”, Sanlam Online Available at: https://www.sanlamonline.co.za/financialplanning/wills-trusts-estates/trustssanlamonline.co.za
“Wills, Trusts and Estates”, Sanlam Online Available at: https://www.sanlamonline.co.za/financialplanning/wills-trusts-and-estatessanlamonline.co.za
“Does Your Family Structure Change How You Draft Your Will?”, Sanlam Knowledge Hub. Available at: https://www.sanlamonline.co.za/knowledge-hub/family-structure-will-planningsanlamonline.co.za
“Get Advice”, Sanlam Online. Available at: https://www.sanlamonline.co.za/personal/get-advicesanlamonline.co.za