After her mother passed away, a reader wants advice with regard to her estate as she left no will.
Her father owns a fixed property, but he and his wife were married in community of property. The mother did have some money on fixed deposit with her bank.
The fact that they were married in community of property has certain consequences in respect of the assets falling under the estate.
Parties married in community of property jointly own all property falling within the communal estate.
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The exception is where any portion specifically falls outside the communal estate or where a portion has specifically been excluded on some basis permissible in law.
In this case, the assumption is that both the fixed property and the money on fixed deposit fall within the communal estate.
The deceased has one child in addition to the surviving spouse.
While many naturally assume that the surviving spouse is the beneficiary of the deceased’s estate in the event of there being no will, this is not the case.
The Intestate Succession Act regulates the administration of the estate of a person who dies without a will.
In the given scenario, the surviving spouse will inherit the amount of R250 000 or a child’s portion, whichever is the greater.
The child’s portion is calculated by dividing the number of surviving children, which includes deceased children who have surviving descendants, plus one. The plus one in this case is the surviving spouse.
On the basis that the reader is the only child for consideration and on the assumption that the value of the deceased mother’s assets is R1-million, the amount would be divided by two (reader and her father).
This amounts to R500 000 as the child’s portion and as that is greater than R250 000, the surviving spouse will inherit the greater amount.
The executor of the mother’s estate will be tasked with its administration.
One of the difficulties faced during this process may be that the fixed property has to be sold for the estate to have sufficient funds to pay the inheritance to the reader.
It is possible for the reader and her father to enter into a redistribution agreement.
Under this arrangement, the property, specifically the deceased’s half-share, is transferred to the surviving spouse, with the reader compromising on her inheritance.
It is also possible, if the reader is in a position to do so, for her to renounce her right to be an heir of the intestate estate.
This will allow the estate to be administered as if our reader had predeceased her mother.
In this instance and on this basis the sole heir of the mother’s estate would be the surviving spouse – the father.
This would entail the entire estate, inclusive of the fixed property and money on fixed deposit, being inherited by the father who could, in turn, bequeath his estate to the reader upon his death.
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