The issue of intestate succession and the problems of dying without a will come under the YourProperty spotlight this week as our experts assist a reader in dealing with an unhappy family member and heir of a property.
The reader writes that she and her husband are living in a house owned by her recently deceased father-in-law.
Although her husband is the nominated heir of the house according to his father’s will, the situation is complicated by the fact that his mother passed away before his father and her estate has not yet been wound up. She died without leaving a will.
It would appear that the reader’s sister-in-law is due a portion of the house by way of the mother-in-law’s estate but this is not clear from the given facts.
The reader says her sister-in-law is now demanding that she be paid occupational rental, or her portion thereof, as a result of her interest in the house.
The reader would like to know whether they as occupiers are obliged to pay.
See the reader’s question here.
Dying without a will gives rise to intestate succession.
This means that certain rules must be applied to the manner in which an estate is to be administered.
It appears that the house was jointly owned by the in-laws, which could be explained in one of two ways.
Each of them could have been registered as 50 per cent owners or another option is that the in-laws were married in community of property.
Because the house is only registered in the father-in-law’s name, the latter position seems to be the case.
Marriage in community of property allows the spouses to work with their respective undivided half shares in the house when planning for succession.
But it gets complicated when the property is left to someone other than the surviving spouse.
It’s a fairly common provision to bequeath the whole of one’s estate to the surviving spouse and allow for an alternative mechanism of administration if their spouse should die first.
The lack of a will means the intestate succession system will be applied, which results in the distribution of the property of the deceased in a different manner.
Various rules developed over time and codified in the Intestate Succession Act set out the manner in which such an estate is to be administered.
If a person dies intestate and is survived by a spouse and descendant, the spouse shall inherit a child’s share of the intestate estate or R250 000, whichever is the greater.
The descendant will inherit any residue of the intestate estate.
If this principle is applied, the father would have continued to own his half share and a “fictional” portion of the house while he lived, while the other portions would be “owned” by his two children.
The reader’s husband will eventually therefore own his “portion” plus his father’s.
Bear in mind that, until the estate is wound up and the house transferred, the heirs merely have an interest in the house but do not own the house or their portion of it.
With regard to the occupational rental, it is probably advisable that the house be occupied during the time of the administration process to prevent break-ins and vandalism.
The reader and her husband are paying all expenses for the property which, technically speaking, the estates are liable to pay.
The executors should determine whether any occupational rental is to be paid, which is often the case, but should take into account that the aforementioned expenses are being covered and that the son has an interest in the house, and, most likely, a greater interest than the sister.
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