Firstly, it is important to establish the difference between these various taxes in the context of estate planning. Estate duty, which is regulated by the Estate Duty Act, is a tax charged on the transference of wealth or assets from the deceased’s estate to their beneficiaries – whether through testate or intestate succession. In other words, regardless of whether a person has a will or not, their assets will be transferred to their beneficiaries on their death and, as such, will be subject to estate duty (where applicable). On the other hand, capital gains tax is a tax charged on the gains made from the sale or transfer of an asset. Because capital gains tax is regulated by the Income Tax Act it forms part of the deceased tax returns and, for the purposes of this article, will be dealt with as such.

Estate duty

When a person dies, their assets will be transferred to their beneficiaries either in terms of their will or in terms of the intestate succession. Either way, the state will levy estate duty at a rate of 20% on the first R30 million, and at 25% on any amount greater than R30 million. While estate duty calculations can be particularly complex, simply speaking the executor is required to calculate the gross dutiable value of the deceased estate less any allowable deductions in order to arrive at the net dutiable value of the estate – upon which estate duty will be charged at either 20% or 25% depending on the size of the estate.

Keep in mind that every person is granted a R3.5 million estate abatement which is not subject to estate duty. In the case of married couples, Section 4(q) of the Estate Duty Act allows for a deduction of any asset left to the surviving spouse. Should this be the case, the first-dying spouse will then roll over their abatement to their surviving spouse who will then have a R7 million estate duty abatement in the event of their death.

If you own foreign assets, it is important to take these into account when calculating your estate duty liability. Where the deceased is a resident of South Africa, keep in mind that their worldwide assets – including all property and deemed property both in and outside of South Africa – will be subject to estate duty. South Africa has entered into double taxation agreements (DTAs) with a number of countries which set out each country’s taxing rights. Essentially, a DTA ensures that a taxpayer is not unfairly taxed both in South Africa and in the country where they hold a foreign asset. Keep in mind that estate duty is applicable to the South African assets of deceased individuals who lived abroad.

When determining the net value of the deceased estate for estate duty purposes, there are a number of deductions allowed in terms of the act. These include the cost of the funeral, tombstone and deathbed expenses which may include medical attendance, private nursing, palliative care, and medication relating to the deceased’s last illness to the extent that the commissioner deems to be reasonable expenses.

Debts which are to be settled from the deceased’s estate are considered allowable deductions, and this includes income tax and capital gains tax. The costs of winding up the estate, including executor’s fees, Master’s fees, advertising and conveyancing costs, are also allowable deductions.

Any property that accrues to the deceased’s surviving spouse is considered a deductible expense, including property, the proceeds of life insurance policies and annuities. Importantly, any retirement money that falls within the ambit of the Pension Funds Act does not form part of a deceased estate. This is because the distribution of retirement fund benefits remains the function of the fund trustees who are obligated to distribute the capital to the financial dependents of the deceased.

When it comes to living or life annuities where a beneficiary (or beneficiaries) has been nominated by the deceased, these proceeds will be paid directly to the beneficiary and do not attract estate duty. When it comes to life insurance policies, the proceeds of the policy which pay out on the death of the deceased are considered deemed property in the estate, subject to a few notable exceptions such as where the policy was a correctly structured buy & sell policy or key-person policy.

Income and capital gains tax

Your tax commitments do not die with you and it is important to note that Sars has first claim to what is owing to it. In fact, a deceased estate cannot be finalised until your tax affairs have been fully settled with Sars – including income tax, capital gains tax, donations tax and any other form of tax that may be applicable.

The reason that capital gains tax arises in a deceased estate is that, in terms of the Income Tax Act, death is a CGT event, and a deceased person is deemed to have disposed of their assets for an amount equal to the market value of the assets on the date of death. Following the submission of the deceased pre-death tax assessment  (which includes all income and deductions applicable up until the date of death), the executor must also prepare and file a final post-death tax assessment in which all CGT payable by the estate must be declared.

Keep in mind that all capital gains tax payable by the estate will be reflected as a liability in the estate and therefore not estate dutiable. Every individual is provided with a once-off CGT exclusion of R300 000 in the year of death, meaning that the first R300 000 of gain will be free from tax. Thereafter, any gains will be included at a rate of 40% and subject to the deceased’s marginal tax rate.

Certain assets in a deceased estate are excluded from CGT, including assets accruing to a surviving spouse, most assets for personal use, assets bequeathed to approved Public Benefit Organisations, and the proceeds from life insurance policies. Further, the Income Tax Act excludes the first R2 million gain on the disposable of a primary residence.

One of the primary aims of estate planning is to calculate the liabilities in one’s deceased estate, including any money owing to Sars in the form of income tax, CGT and estate duty. In the absence of careful planning, the liquidity in your estate and your estate’s ability to meet its obligations can be compromised.