Answer to a question from a reader

What happens with the title deed if there is no will?

The short answer

The Intestate Succession Act of 1987 applies

The whole question

Dear Athalie

My mother-in-law did not write a will before she passed away. My wife is her only child and has gotten the title deed. We are married in community of property but my wife has a son from a previous relationship. What will happen with the title deed?

The long answer

As she died without a will, the Intestate Succession Act of 1987 applies. This means that if your mother-in-law has no living husband, and your wife is her only child, your wife will inherit the property. If your wife died, and you were still alive, you would inherit 50% of the property in terms of community of property, and if she did not leave a will, the child would inherit the other 50% of the property. Whether the child is yours or not would make no difference. If she did leave a will specifying beneficiaries, you would still be entitled to your 50%.
When someone dies, the death must be reported to the Master of the High Court. If there was no will made, the heirs (in this case your wife) must nominate someone to be the Representative with the Letter of Authority if the estate is worth less than R250,000, or the Executor with a letter of Executorship if the estate is worth more than R250,000. The Representative or the Executor must be appointed by the Master of the High Court to wind up the deceased estate.
The transfer of the title deed cannot be registered before the Executor has made a report to the Master of the High Court about all the assets and debts of the estate, and has put a notice in the Government Gazette and the local newspaper that the report (called a Liquidation and Distribution Account) will be open for the public to inspect for 21 days so that anybody who is owed money can come forward to claim payment.
The deceased estate, which is administered by the Representative or Executor, must pay any debts owed before the property can be transferred.  
The Representative/Executor would arrange for a conveyancing attorney to transfer the title deed from your mother-in-law’s name to your wife’s name. A conveyancing attorney is a lawyer that specialises in transferring property, and pays the Deeds office fees and sees to it that the title deed is signed by the Registrar and that a copy of the new title deed is kept at the Deeds Office, so there is proof of the new ownership of the house. 
The conveyancer has to certify that the transfer is in terms of the Liquidation and Distribution Account which has been open for public inspection. The conveyancer has to lodge a copy of the Liquidation and Distribution Account with the other documents at the Deeds Office.
The conveyancer must also apply for a rates clearance certificate from the municipality. This certificate is to prove that all debt owed by your mother-in-law to the municipality has been paid up until after the transfer of ownership, which could be three months.
The conveyancing attorney will be paid from the deceased estate of your mother-in-law. The fee depends on the value of the estate and could be from around R5,000 to around R7,000.

Wishing you the best,

Answered on Oct. 13, 2021, 2:03 p.m.

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