The Persistent Complexities Relating To Late Estates
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The Persistent Complexities Relating To Late Estates
By Matseleng Mogodi
This article was originally published by Real Estate Investor Magazine.
When it comes to issues around family estates more so if the unfortunate life reality hits a family whereby a loved one passes on and they were the original owner of a property, it often brings about various questions amongst family members and at times creates conflict around who should be the rightful owner of the property now that the original owner has passed on. There are many dynamics surrounding family homes thus, what is required is knowledge and information to help the family resolve these matters, or to even avoid getting into these troubles and heartache in the first place.
According to a survey conducted in 2019 by TD Wealth, family conflict remains the biggest threat to estate planning. The survey had a total of 105 respondents who attended the 53rd Annual Heckerling Institute of Estate Planning event which included attorneys, accountants, trust officers, as well as insurance advisors. As the conflict continues to feature highly in this regard, 2 factors are at play, the first being the dynamics around blended families which consist of a couple and their current children as well as those from their previous relationships respectively, with another factor being the designation of beneficiaries.
Why Late Estates Cause a High Degree of Conflict amongst Family Members.
Furthermore, over the years of working on real estate properties, issues around deceased estates often crop up from family members or even relatives, sometimes even criminals who claim to be related to the deceased in order to get ‘appointed’ as an executor and claim the inheritance. As property practitioners, we often see a lot of properties being sold by an individual whose name appears on the Title Deed, but later it emerges that either they managed to somehow transfer the late parents’ or guardians' 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. There is an even bigger ridiculous claim some of these people have, they say ‘I’m the last born therefore, I am entitled to this property”.
The Role of Property Practitioners
Moreover, this then brings into question the role of property practitioners 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. In
Providing this guidance and one would advise people in consultation with an attorney to ask questions such as the following; who can rightfully sell the family home and what is the process? Who is entitled to the family home after the parents/guardians 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, the question then becomes, do these ‘adopted’ relatives’ children have the right to ownership of the property when the owners are deceased?.
Involving Attorneys In Order To Mitigate Disputes.
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 as amended (hereinafter referred to as “the Act”). Once the family agrees on who should be appointed, then this appointed individual would then be responsible for the winding-up of a Deceased Estate. This involves making sure that the assets, settling liabilities, and obtaining assets and distributing them to the heirs or legatees in the Estate and this is usually guided by a Will of the deceased. Most of the time there is no Will, and the Law applies, usually fair as it covers all the descendants/heirs when they are known and found.
Although, in the event that the deceased did not leave a Will behind or it does not provide an Executor, the Master of the High Court will appoint a person competent in law to act as an Executor, and they are known as Executor Dative (usually the family member or attorney would be the executor).
Concluding Advice.
Overall, it is imperative that in managing an estate of the late, clear objectives must be drawn out and those must ensure 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 limiting any potential risks that may occur as a result. Individuals are further challenged to start communicating what they would like to see once they have passed on as death is an inevitable event.
Nevertheless, family estates continue to hold a very sacred space amongst various communities in South Africa, and thus those who are either entrusted with them even in terms of
Inheritance must ensure they take good care of them for the long term. Sometimes, or most times, the appointed person may not even know what to do, but if the family trusts this person, then the attorneys will do a great job in hand-holding them through the process. Families must unite and work together towards a common goal and where applicable actually turn some of these properties into viable businesses that will yield investment returns.
Author: Matseleng Mogodi