If someone gave you their title deed before their death, would you have rights to the house even if your name is not on the deed?

The long answer

It is indeed unfortunate that your mother-in-law did not leave a will – she clearly wanted your husband to inherit her house, as she gave him the title deed. But in legal terms, giving someone the title deed is not the same as leaving the house to them in a will. 

As your mother-in-law did not leave a will, her deceased estate would fall under the Intestate Succession Act of 1987. That means that if she had a surviving spouse, he would inherit everything. But if there was no surviving spouse, the children would inherit in equal shares.

Was your mother-in-law’s death reported to the Master of the High Court with her death certificate? A death must be reported within 14 days and then a deceased estate comes into being. That means that all bank accounts and property belonging to your mother-in-law is frozen until a representative is given a letter of authority by the Master, if the estate is worth less than R250,000. If it is worth more than R250,000, the Master will appoint an executor. 

Whether the Master appoints a representative with a letter of authority or an executor, their job is to administer the deceased estate. That means opening a new bank account in the name of the deceased estate, paying all the debts and then seeing that the rightful heirs are identified, so that the assets are distributed fairly to them. 

The family members must nominate a person to have the letter of authority (J170) but the Master has the final say on who it is. If he is satisfied that the nominated person is suitable, he will issue the letter to the person nominated. That can take up to 120 days. 

In case, your mother-in-law’s death was not reported, these are the documents needed to report it:

• Completed Death Notice (Afrikaans or English) form – J294;

• Original or certified copy of the Death Certificate;

• Children’s birth certificates to prove their relation to the deceased mother.

• Any will that she made (if there was any such will)

• Completed Next-of-Kin Affidavit  – J192 (if the deceased did not leave a valid will);

• Completed Inventory (form – J243) showing all the assets of the deceased (Proof of the value of the assets must be provided)

• List of creditors of deceased (if applicable);

• Nominations by the heirs for the appointment of a Master’s representative in the case of an intestate estate;

• Acceptance of Master’s Directions – J155 (English), completed and signed by the person as nominated above;

• Certified copy of the ID of the person to be appointed as Master’s representative.

The letter of authority (J170) must be obtained from the Office of the Master of the High Court or a Magistrates Court, and can take up to 120 days to be issued. The letter of authority would give the nominated representative the right and duty to administer your mother-in-law’s estate – paying all the debts and seeing that all the rightful heirs are identified, to distribute the assets fairly and correctly. 

The person with the letter of authority, or the executor, must open a new bank account in the name of the deceased estate (such as Late Mrs X) and pay any outstanding debts before seeing that the rightful heirs inherit. The letter of authority, or being appointed as an executor, does not give that person any rights over the property. Their duty is to wind up the deceased estate. 

The representative or executor will need to provide the bank with the following documents:

• Death Certificate

• Deceased’s ID

• Letter of authority or Letter of executorship

• Appointed representative’s or executor’s ID

So, to go back to your case, where the brothers want to sell their deceased mother’s house: in terms of the Administration of Estates Act of 1965, it is only the representative with the letter of authority, or the executor, that has the power to sell the house, but it cannot be sold without the written permission of all the heirs. The Master of the High Court also needs to approve the sale first. 

If one of the heirs didn’t want to sell, this would significantly delay the sale. Usually, disagreements are resolved through meetings or mediation, but if that was not successful, the heirs who wanted to sell could go to court for permission to sell. The court would have to be satisfied that it was in the best interests of all the heirs to grant permission to sell.

Transferring property within a deceased estate means that the representative with the letter of authority, or the executor, must get a Section 42 (2) Administration of Estates Act Certificate from the Master of the High Court. A conveyancer (a lawyer who specialises in property transfers) will need this Certificate to officially transfer the title deed into the new owner's name. 

The conveyancer will also apply to the municipality for rates figures. The seller must pay an advance amount in cash to the municipality so that a rates clearance certificate can be issued. It is usually an amount of about 60 days in advance, and it is to make sure that the person buying the house does not inherit municipal debt from the present owners. When it is paid, the conveyancer will receive the rates clearance certificate from the municipality and will then be able to transfer the property into the name of the new owner at the Deeds Office. Thus, all the legal work of transferring the property is done by the conveyancer, and of course the conveyancer will also need to be paid.

So, it seems that the right that your husband would have, is the right to an equal share of the house, along with his brothers. Because the estate must be fairly distributed between the heirs, the representative or executor should understand that the brothers had already benefited from the house more than your husband, as they had removed the furniture from the house. This could mean that your husband is compensated for that, but that would have to be explored with the representative or the executor, who may also refer such a question to the Master for guidance.  

This is a lot of information to process and test against your husband’s situation, and it may be worthwhile to approach Legal Aid (which is a means-tested organisation that must assist people who can’t afford a lawyer) for free legal advice and assistance:

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

You could also approach The Black Sash, an organisation that gives free paralegal advice, to help you:

• Email: [email protected] 

• Helpline: 072 663 3739 or 063 610 1865

Wishing you the best,
Athalie