A reader whose father is suffering from dementia wants to know how he should go about transferring his dad’s fixed property into his name.
He says his father does not have a will and he also wants to know what will happen if he passes away while the property, which is paid off, is still registered in his name.
It is important to establish beyond doubt that the father does not have a will.
See the reader’s question here.
It is quite possible that, at some stage during his life, he made a will. This could have been done through his insurance policy service provider, his bank or the army.
While the will may be old, it is possible that, if executed correctly, it is still valid despite perhaps catering for different circumstances.
In the event of the father passing away with the fixed property registered in his name, and assuming he has no will, the provisions of intestate succession will apply.
There is no indication of any descendants other than our reader, or whether the spouse of the father is still alive.
The Intestate Succession Act states that if the deceased is survived by a descendant, but not a spouse, that descendant will inherit the estate.
Where the deceased is survived by a spouse and a descendant, the spouse will inherit a child’s share of the estate or an amount fixed from time to time by the Minister of Justice by notice in the Gazette (currently R250 000), whichever is the greater.
If any, the descendant shall inherit the residue of the intestate estate.
A child’s share is calculated by dividing the value of the estate by the deceased’s number of children (who have either survived him or died before him but are survived by their descendants) plus the spouse.
With that in mind, the reader should consider whether it would still be him who would inherit the property should his father pass away without a will.
If he is the only possible beneficiary under the laws of intestate succession, it may be sensible for him to take no steps.
The property will then be transferred to him during the winding up of the estate upon the death of his father.
Transferring the fixed property prior to the death of the father would require it to be sold or donated, which may result in some unwanted tax implications.
A sale would require that the purchase price be paid in the manner set out in an agreement of sale.
If the reader wishes to actively administer the estate of his father prior to him passing he would require the necessary authority to do so.
One option is to apply to the High Court for the appointment of a curator based on an order declaring another person to be of unsound mind and, as such, incapable of managing his affairs.
Another is an application to the High Court for the appointment of an administrator for a mentally ill person or person with profound intellectual disability under the Mental Health Care Act.
On the appointment of the reader as either curator or administrator of the estate it does not mean that he will be entitled to merely transfer the property to himself.
For example, the Mental Health Care Act says an administrator may not alienate or mortgage any immovable property of the person for whom he is appointed.
This can only be done when authorised to do so by a court order or with the consent of the relevant Master of the High Court.
The act also states that the spouse, child, parent, partner, associate or agent may not purchase or otherwise acquire any property of that person unless with the consent of the relevant Master.
If there was a purchase of the property, it had to be in writing and legally authorised by the owner before the administrator was appointed.
This scenario indicates the importance of executing a relevant and valid will, as well as considering that will from time to time to reflect changing circumstances.
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