A reader who has inherited a property from a third party wants to know what the costs will be to transfer it into his name and who will be liable for such fees.
As the property is currently occupied by tenants, he also wants to know who should be collecting the rental while the transfer is being finalised.
His grandfather bequeathed the property to his wife when he died in 2008 with the proviso that, upon her death, it should be transferred to the reader. She has now passed away.
The condition attached to this was that he would have to pay amounts of R40 000 to his brother and R20 000 to his father respectively.
This form of bequest is called a fideicommissum.
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This is a legal institution where the owner of a property transfers it to another person subject to it being transferred from that person to yet another person at a later stage.
It is usually created in a will where property is first bequeathed to the one heir (the fiduciaries) and then, subsequently, to someone else (the fideicommissarius) at a predetermined time, normally at the death of the first heir.
Historically this was used when a property owner wanted to ensure that an asset was passed down from generation to generation.
Its origins emanate from Roman law and it found a firm foundation in South African law over many generations.
In the 1960s this often overly restrictive provision was curtailed by legislation.
In the Immovable (Removal or Modification of Restrictions) Act 94 of 1965 the duration of the fideicommissum structure was limited to two fideicommissaries.
This meant, for example, that A could bequeath an asset to B and determine that B had to bequeath the asset to C.
Thereafter C would become the outright owner of the asset, regardless of further restrictions that A could have intended for the transfer of the asset.
Besides being criticised as a way of ruling from the grave, too often the original owner could not possibly have anticipated the changing circumstances and needs that would apply to future generations.
Instead of safeguarding assets this structure often caused much untold hardship.
As with any transfer of fixed property and rights thereto, the services of a conveyancing attorney will be secured by the deceased estate.
The costs related to the property transfer will be an expense in the deceased estate and can only be done after the liquidation and distribution account prepared by the executor has been finalised.
During this time it is the duty of the executor to collect any rental due and to distribute such income in terms of the provisions of the deceased’s will.
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