Policy Structure and the Premium Traps
The tax reliefs all hinge on who owns each policy, whose life it insures, and who pays the premiums — and several of these mistakes cannot be repaired later
Written by
Martin Kotze
Attorney, Conveyancer & Notary Public
Last reviewed:
Contents
The Standard Structure: Cross-Holding
Each co-owner takes out and owns a separate risk policy on the life of each other co-owner, with the sum assured matched to that other owner’s share of the practice value (plus loan account), and pays the premiums on the policies they own from their own after-tax resources. When owner A dies, owners B and C each receive the proceeds of their policies on A’s life and use them to pay the estate for A’s shares, in proportion to what each is buying.
How many policies?
2 owners
2 policies
3 owners
6 policies
4 owners
12 policies
Each owner holds a policy on every other life. Where the number of owners makes the matrix unwieldy, insurers can consolidate cover administratively — but the ownership principle (buyer owns the policy on the seller’s life) must survive whatever the packaging.
The premium burden is asymmetrical by design. The younger, healthier owner pays the higher premiums on the older owner’s life, and vice versa. That asymmetry is the price of the tax exemptions and must not be “fixed” in ways that break them.
Structures to Avoid
The insured owning a policy on their own life, later ceded to the others
This is the classic conversion of existing personal cover into buy-and-sell funding, and it is usually fatal to the estate duty exemption. The exemption requires that no premium on the policy was ever paid or borne by the deceased — and SARS’s external guide is explicit that a policy on which “the deceased paid the first few premiums” before ceding it does not qualify. Historic premiums count. Take out fresh policies, owned from inception by the buyers.
The practice itself owning the policies, with a share buy-back on death
Tempting for premium-affordability reasons, but the company is not a co-shareholder in itself, so the buy-and-sell exemption cannot apply to company-owned policies on shareholders’ lives. The company must instead try to fit the much stricter key-person exemption, which fails where proceeds benefit the deceased’s family.
A buy-back also brings its own baggage: the repurchase price is a dividend for tax purposes except to the extent it is a return of contributed tax capital (20% dividends tax exposure for the estate), and the solvency, liquidity and approval requirements of sections 46 and 48 of the Companies Act 71 of 2008 apply. For a professional practice there is a further, decisive objection: a buy-back concentrates ownership pro rata among all remaining shareholders automatically, with none of the flexibility a practice needs when the buyers must each be qualifying professionals.
Shares held in family trusts
A popular estate-planning structure that quietly destroys the buy-and-sell exemption. The exemption requires that the policy owner held shares in the company at the date of death and that the deceased held shares. Where the co-owners have moved their shares into family trusts, neither individual holds shares any more — the trusts do — and SARS’s guide confirms the exemption then fails. SARS does accept, on a long-standing ruling, that a policy owned by a trustee on the life of an individual co-owner can qualify — but not where the shares themselves sit in trusts. Professionals whose practice rules require personal shareholding are largely protected by those very rules; the trap arises most often in practice property companies and mixed structures.
Joint or practice-administered premium shortcuts
One debit order from the practice bank account for all the premiums is administratively neat and fiscally dangerous. It is workable only with strict discipline about whose loan account bears which premium — see the first premium trap below.
Cover That Overshoots the Value
What if the policies pay out more than the interest turns out to be worth? SARS’s guide claims a discretion: where the gap between proceeds and the practice’s value at death is substantial, the Commissioner may exercise a discretion by not allowing the exclusion, judging the intention of the parties — though a gap that can be explained (the guide’s example is a general downturn in that type of business shortly before death) leaves the parties’ intention beyond doubt.
Commentators are divided. The long-standing view associated with Meyerowitz is that a genuine buy-out purpose protects the full proceeds even if they overshoot, while stricter advisers warn that deliberate over-insurance can forfeit the whole exemption and, if the survivors are obliged to pay over the excess as an inflated price, add a donations tax problem on the overpayment. There is no ruling or reported case that settles the point.
The discipline that avoids the argument entirely: size cover to the current valuation plus loan account, review both annually, and record the reason for any deliberate margin — such as expected growth between reviews.
If the Exemption Fails, Who Pays?
This is the part that surprises people. Where proceeds are deemed property, the duty attributable to them is payable not by the estate but by the person entitled to the proceeds — the surviving co-owners — under section 11(b)(i) of the Estate Duty Act, apportioned under section 13.
On R6 million of proceeds that can mean R1.2 million or more of estate duty landing on the very people who needed the full amount to fund the purchase. A failed exemption does not merely lose a benefit — it creates a personal liability, at the moment the practice has just lost a fee-earner.
The full estate duty, capital gains tax and income tax analysis — including a worked example showing what one wrong ledger entry costs — is set out on the tax treatment page.
Have Your Structure Checked
Policy ownership and premium flows are the two things most likely to be wrong in an arrangement signed years ago — and the two hardest to repair after the event.
Practice Succession Knowledge Hub
The complete guide to buy-and-sell agreements for South African professional practices, split into the parts you are most likely to need.
Buy-and-Sell Agreements for Professional Practices
The pillar guide — what happens without one, the two legs, validity, and what is actually being bought.
The Tax Treatment
Estate duty, capital gains tax, income tax, STT and donations tax — with a worked example and the 2026/27 figures.
Profession Rules: Who May Buy
Attorneys under the LPA, health practitioners under the HPCSA rules, and the auditors’ six-month statutory clock.
The Agreement & What Goes Wrong
The clause-by-clause checklist, disability and lifetime buy-outs, the twelve failure modes, and the roadmap.
Frequently Asked Questions
The questions practice owners actually ask — premiums, family trusts, loan accounts, new and departing partners.
Why you can trust this: Martin Kotze has been an admitted Attorney of the High Court of South Africa, registered Conveyancer, and Notary Public since 2014, practising from Pretoria. The firm is regulated by the Legal Practice Council under firm registration 17444.
This guide is general information, not legal advice for your specific matter.