The short answer
Go to the Master of the High Court where the letter of authority was issued and ask them to help you.
The whole question
Dear Athalie
What can we do to make sure that our stepfather, who has the letter of authority over our late mother’s estate, pays me and my sister the money from our mother’s Old Mutual policy that was paid into his account? My sister and I were named as the beneficiaries of her policy.
He is also denying us access to our mother's house, to which we are also beneficiaries. He and my mother were married in community of property but she did not make a will.
The long answer
In terms of your mother and stepfather’s marriage regime – community of property – if your mother died intestate, that is, without making a will, your stepfather would inherit 50% of the joint estate. Of the remaining 50%, you and your sister would inherit a child’s share, which is the amount you get when the remaining 50% is divided by the number of surviving children and any children born of deceased children, plus the surviving spouse. So, in your case, a child’s share would be the value of the remaining 50% of the estate divided by three (which is just over 16%).
Having the letter of authority means that your stepfather has the right and duty to wind up the deceased estate: that means he must pay all outstanding debts that your mother may have had, and from what is left, he must see that all the heirs receive what they are owed. If you were named as your mother’s beneficiary for her Old Mutual Policy, he must pay the money over to you.
Usually, if you are a beneficiary of a life policy, it is paid out to you and does not form part of the deceased estate. So, usually, it would not involve the representative with the letter of authority.
But if the estate is liable for estate duty, which is a tax levied by SARS after your death, the life policy would be made part of the assets of the estate.
However, as Smart About Money website says, an estate is only liable for estate duty if it exceeds the exemption or estate duty abatement, which is currently R3.5 million on the estate of a single person or the first dying spouse or life partner. They also say, “Typically estate duty is paid out of any amount left in your estate after any bequests you have made to heirs in your will have been paid. However, if there is not enough money in your estate, bequests may have to be cut to pay your debts, estate fees, and estate duty.”
But when you name a beneficiary on your life policy – if estate duty is due on the policy proceeds once it has been deemed to be an asset in your estate - the executor will recover the percentage of money represented by the policy to the estate, from the beneficiary. (In other words, as Money Web website explains, the beneficiary would have to repay the pro-rata portion that the life insurance policy contributed towards the overall estate duty.)
So, given that your stepfather has a letter of authority, which is given for an estate worth less than R250,000, I cannot think that there is estate duty to be paid to SARS on your late mother’s estate. So, I don’t understand why Old Mutual paid the money from your mother’s policy into your stepfather’s account rather than directly into your and your sister’s accounts.
Perhaps your first step should be to query this with Old Mutual and ask for their assistance in receiving the money due to you.
In terms of access to your share of the house – a child’s share of the 50% as explained above – I think you need to approach the Master of the High Court in your area who issued the letter of authority to your stepfather; explain the problem to him and ask them to help you and your sister to inherit what you are owed as heirs.
If you are not helped by the Master of the High Court in your area, you can file a complaint with the Chief Master who supervises the Masters in the different provinces. These are the contact details for the Chief Master, the helpline is 012 406 4805 or emails can be directed to chiefmaster@justice.gov.za.
Email: help@blacksash.org.za
Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865
Finally, you could also approach Legal Aid which is a means-tested organisation that must help people who can’t afford a lawyer:
Tel: 0800 110 110 (Monday to Friday 7AM - 7PM)
079 835 7179 (Please Call Me)
Email: communications2@legal-aid.co.za
In summary: Ask Old Mutual why they paid the money into your stepfather's account and not yours. Then go to the Master of the High Court and ask them to make your stepfather distribute the inheritance as he is supposed to. If they won't, you can submit a complaint against them. You can also get legal help if you need it.
Wishing you the best,
Athalie
Answered on Oct. 31, 2023, 1:13 p.m.
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