A reader wants to know if her brother’s rights will be protected in a dwelling where he lives which is to be transferred into a third sibling’s name.
She asks whether her sister and her husband will be entitled to sell the property in future and how this will impact on her brother’s rights.
Their father, who owned the house, died without leaving a will and the one sister and her husband continue to live there, together with the brother.
See the reader’s question here.
The siblings have apparently reached some agreement as to the division of assets and the reader says her sister and her husband residing in the house will take transfer of the property.
No money will be paid to the other siblings for their share of the property.
Dying without a will causes the provisions of the Intestate Succession Act to apply to the winding up of an estate.
In this instance, with only children surviving the deceased, the act states that such descendants shall inherit the intestate estate.
This is typically effected in a manner where each descendant inherits an equal share.
It is not clear as to the basis upon which the siblings have reached an agreement on the division of the estate and whether the estate comprises more than the fixed property.
A descendant is entitled to renounce his or her inheritance, although it is possible that the siblings entered into a redistribution agreement.
In this instance, the siblings may have agreed that the reader and her brother do not receive direct compensation for their interest in the fixed property, perhaps on the basis that they receive a benefit elsewhere.
On this basis, the sibling retaining ownership of the fixed property would not pay out the other siblings but would forego any interest in the other assets.
The husband would not be entitled to take ownership in any redistribution agreement as he is not a beneficiary under the act.
It may be that they are referring to him as an owner in a colloquial sense as he is the husband of the owner.
Alternatively, he and the sibling may be married in community of property and thus he acquires an undivided half share in the fixed property.
If it is so that a redistribution agreement is being considered, the siblings who intended to have no ownership in the fixed property are being paid in another manner.
They will be owners of other agreed assets to the exclusion of the property-owning sibling.
If, however, this is not the case it may not be a bad idea for all three siblings to participate in the ownership of the fixed property.
In this way they can conclude an agreement to regulate their co-ownership and, in effect, protect the rights of the brother.
If this is not a possibility, some other mechanism may be required to protect his rights, in which case a servitude is a possibility.
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