Zanele Sithole* is finding out how difficult it can be to wind up a loved one’s estate, not only as she is trying to deal with the recent death of her mother, but also because she does not want her much-loved home to be lost to the family.
Her brothers want to sell it, but she wants it to stay in the family.
“My mother loved her house. She worked hard to afford it. It was her pride and joy and I am sure that she would have loved her children and grandchildren to enjoy it just as much as she did.”
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Sithole’s brothers, however, want to sell the property as they feel that the proceeds of the sale would help all three of them financially – perhaps even allow them to put down deposits on their own homes. Not being able to agree, they have come to loggerheads.
“I just feel that my mom would be disappointed if we had to let her home go,” she says, adding that she would also like to raise her future children in it one day.
“I have tried to get my brothers to agree to let me have the home and I will pay them rent each month, or pay them out their shares over a few years, but they believe that it will take too long and that it will help us all heal quicker if we just sold the house and walked away.”
Sithole now wants to see if she can employ the services of a legal professional to help her fight to keep her mother’s home.
This is just one example of how much special space family homes hold in the hearts of all who spent many special moments under their roofs. And so, when the registered owner passes away, conflict and complexities can arise.
These often-contentious issues relate to both the legal and emotional aspects of the deceased estate and, if not handled correctly and sensitively, can have profound – and unnecessary, effects on families.
Common conflicts
There are many dynamics surrounding family homes and thus, says Matseleng Mogodi, founder and principal of Snooks Estates, knowledge and information are necessary to help resolve any matters – and even avoid getting into these troubles and suffering further heartache in the first place.
Her experience in real estate has seen close and distant relatives – and in some cases even criminals, attempting to be appointed as executors and claiming any inheritances.
“We see a lot of properties being sold by the person whose name rightfully appears on the Title Deed, but later it emerges that they managed to somehow transfer the late parents’ home into their name without informing other family members.
“Sometimes family members know that the property is in this person’s name but never expected this person to sell the family home without the family’s consent. But it happens.”
Mogodi notes that there is an “even bigger, ridiculous claim” from some family members who are convinced that their position in the family – such as first or last born, entitles them to the inheritance.
This then brings into question the role of real estate agents in being the foundation of assistance for clients who may encounter such challenges, and thus bringing in attorneys, conveyancers and notaries to provide added expertise and advise accordingly.
Key understandings
In handling issues of this nature, she says it is important that key questions are asked of an attorney. These include:
- Who can rightfully sell the family house and what is the process?
- Who is entitled to the family home after the parents pass on?
- Do grandchildren benefit from the family house after the grandparents have passed on? In most townships, relatives live with children that have come to stay with them for various reasons, and the question then is whether these ‘adopted’ children have ownership of the property when the owners are deceased?
“Most attorneys dealing with deceased estates will advise that it’s best to avoid conflict pertaining to late estates, and that a family must sit-down and appoint an executor of an estate in terms of the Administration of Estates Act 66 of 1965...Once the family agrees on who should be appointed, then this appointed person would then be responsible for the winding up of a Deceased Estate.”
The legal process
Where the registered owner of immoveable property has died, Pearl Scheltema, chief executive of Fitzanne Estates, says the property will need to be transferred to another person, normally a family member. The property will often need to be transferred to an heir or beneficiary nominated in the Will of the deceased, but sometimes it may be in terms of the Intestate Succession Act.
“When a person dies, the Master of the High Court appoints an executor to administer the deceased estate. The executor is the only person who is lawfully authorised and empowered to deal with the assets of the deceased. The purpose is to ensure an orderly winding up of the financial affairs of the deceased, and the protection of the financial interests of the heirs.
“Until an executor is appointed, no-one can act on behalf of the deceased estate.”
Clear objectives
Overall, Mogodi says it is imperative that in managing an estate of the late, clear objectives are drawn out and that every family member understands what they entail, especially with regards to the law.
“Estate planning brings with it the responsibility of motivating families to enhance communication even in unfavourable circumstances, and, as such, dialogue must forever be the order of the day in order to limit any potential risks that may occur as a result.”
She further advises and challenges people to start talking about what they would like to see when they pass on.
“Some people do, but most do not. Maybe we are too afraid of death.”
Inheriting the property
Jawitz Properties’ Mariette Breytenbach says being the beneficiary of fixed property also brings with it several pros and cons that need to be considered, one of which are financial issues. There may be outstanding debts on the property and beneficiaries need to consider the estate taxes and other financial implications associated with the inheritance, she says.
“Once the property is officially transferred to the beneficiary, other expenses related to maintenance, possible renovations, and monthly rates and taxes need to be taken into account.”
Once all the necessary steps have been taken to evaluate the financial implications of owning the property, beneficiaries need to decide whether to move in, sell it, or find tenants. For some people, sentimental value is more important than profit while, for others, a clean break is easier from emotional and financial points of view.
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