A reader’s parents, who owned two properties, died intestate and he wants to know, in the absence of wills, the procedure to follow to transfer the properties to the children.
The properties appear to have first belonged to the reader’s father, who then passed away.
His mother then “looked after” the properties until she also died.
See the reader’s question here.
When someone dies without a will, the rules of intestate succession are followed.
An executor still has to be appointed if the value of the estate exceeds R250 000 and this is done based on nominations received from the next of kin.
In short, where there is only a surviving spouse, that person will inherit the deceased’s estate.
However, when there are also children, regardless of their ages, the spouse and children will each inherit a portion of the estate as set out in the Intestate Succession Act.
At the death of the first spouse, the surviving spouse is entitled to an amount of R250 000 or a child’s share, whichever is the greater, while the children are entitled to the balance of the estate in equal shares.
A child’s share is determined by dividing the value of the estate by the number of surviving children, the offspring of any deceased children and the number of spouses who have survived the deceased.
This means that at the death of their father, unless an alternative agreement was reached, the children would have already become entitled to a share in the properties.
Following the death of the mother, her estate would have devolved in accordance with intestate succession, which means that the children would have become entitled to the estate in equal shares.
It first needs to be determined that the late father’s estate was properly wound up before the current situation can be assessed.
Once this is established, and assuming the winding-up process was completed, it is part of the executor’s duties to see to the appointment of a conveyancing attorney, who will properly transfer the properties to the children.
No transfer duty is payable in a deceased estate and the transfer costs are typically an administration expense borne by the estate.
If there is not sufficient cash in the estate, the executor can instruct that assets be sold to provide cash or the beneficiaries can contribute cash to avoid this happening.
Certain costs may have accrued in respect of the properties in the time since the passing of the reader’s father.
These costs, particularly those such as rates, will have to be settled if they weren’t paid in the interim before the transfer will be effected.
If a third party has covered certain of the costs relating to the properties, that person may wish to be reimbursed.
If such a claim is valid, a source of funds will have to be considered.
Again, property, whether movable or immovable, may have to be sold to provide funds for any such debt.
To determine whether the estate was dealt with the reader could approach the relevant Master’s office for assistance or ask his attorney to make such inquiries.
Copies of the relevant documentation, if any, could be sourced from the Master’s office in order for both estates to be wound up properly.
If no documentation was lodged, the estates will probably have to be dealt with from scratch and our reader may prefer professional assistance to expedite matters.
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