What are my rights to my spouse's estate if he dies, and can my adult children legally challenge my decisions?

The long answer

1. What will I be entitled to claim off our entire estate?

If you are married in community of property, you have a joint estate, which includes all assets and debts. Crue Invest explains that in community of property when your spouse passes away, the joint estate is dissolved, as there cannot be a joint estate with only one owner. You, as the surviving spouse, will have a claim for 50% of the net joint estate. (The net joint estate means the assets and debts calculated after all joint debts and administration costs have been paid, leaving a final net value.)

This 50% is not an inheritance, so no inheritance tax has to be paid. The other half of the net estate goes to the heirs of the deceased as named in his will or, if he did not leave a will, as per the Intestate Succession Act.

Upon your husband's death, the entire joint estate is frozen. No one, including the surviving spouse, can deal with the assets (such as selling property) without the necessary permission and the official appointment of an executor by the Master of the High Court.

This is how it works:

An executor is appointed by the Master to manage the entire estate, which consists of both spouses' assets and liabilities. All joint debts are settled first.

After the debts are settled, the remaining estate is split 50% to the surviving spouse and the other 50% (the deceased’s share) is distributed to the beneficiaries named in the will or by law (intestate succession).  

The surviving spouse cannot sell even their own half until the entire estate has gone through the formal winding-up process under the Master's supervision.

Only the appointed executor has the legal authority to manage and distribute the deceased's assets and settle debts.

2. Can I sell our home to buy an apartment?

The property cannot be sold before your husband’s deceased estate has been administered by an appointed executor with the consent of the Master of the High Court.

The property can be sold during the estate administration process if one or more of the following applies:

• The will specifically instructs the sale.

• The heirs (which may include the widow and children) all agree to the sale.

• There is not enough cash in the estate to settle outstanding debts (e.g., a mortgage bond, taxes or other liabilities). In this case, the property may have to be sold to cover the debts.

For the sale or transfer of immovable property in a deceased estate, the executor must submit the price that they think is fair to the Master of the High Court. The Master will check that it is in line with current market values before giving permission to sell it. The executor must get a certificate from the Master (a Section 42(2) certificate) certifying that the Master has no objection to the sale. The executor signs all agreements of sale and transfer documents.

The following certificates must be obtained by the conveyancer who transfers the house in the Deeds Office: 

• A rates clearance certificate from the municipality. This certificate is given once any unpaid rates, taxes, water, electricity, refuse, and other municipal charges for the 24 months before the application have been paid. An advance payment of two to four months must also be made to cover the transfer period, which could be 90–120 days.

• A transfer duty exemption certificate from the South African Revenue Service (SARS). The transfer of the half share to you, either by a section 45(1) endorsement or formal transfer, is exempt from transfer duty in terms of section 9(1)(e)(i) of the Transfer Duty Act 40 of 1949.

If your spouse bequeathed his share of the joint estate to you, you will have the right to take transfer of his half of the property. Natasha Fletcher in a Cliffe Dekker Hofmeyr Attorneys article explains that this transfer can be done either by a section 45(1) endorsement or by a formal transfer. The conveyancer will decide which method to use.

A section 45(1) endorsement is an endorsement against the existing title deed of the property. It gives you the right to deal with the property as if you had taken a formal transfer of your deceased spouse’s half share.

With a formal transfer, a separate title deed for the half share is issued in your name. That means that you have two title deeds: a half share of the existing title deed and a half share through the new title deed.

Once the property has been transferred to you either through a section 45(1) endorsement or through a formal transfer, you are free to sell it.

3. I plan to bequeath my half of my estate to one of my daughters. What should I do?

Any person over the age of 16 is allowed to draft a will, but it may be wise to get legal advice on how to draw it up. Legal Wise says that a will could be found to be invalid if all the strict requirements are not observed: e.g., every page must be signed by the testator and two competent witnesses in each other’s presence. A person who signs as a witness is not allowed to inherit from that will, nor is a person who writes the will in their own handwriting allowed to inherit. 

You could ask Legal Aid to assist you. Legal Aid is a means-tested organisation that must assist people who can’t afford a lawyer. These are their contact details:

• Legal Aid

• Email: [email protected]

• Tel: 0800 110 110 (Monday to Friday 7am to 7pm)

•  Please Call Me: 079 835 7179

4. Will the remainder of my spouse’s pension be paid out to myself in a lump sum or monthly? 

Before we get to that question, perhaps we should just look at how the Pension Funds Act works: 

10X explains that according to Section 37C of the Pensions Funds Act, the fund's board of trustees has the duty to allocate the death benefit fairly and equitably among all dependants and beneficiaries, which include the spouse. (A spouse is a legal dependant, which is someone who had a relationship with the deceased member that is recognised in law as creating a duty of support. A factual dependant is someone who was being supported financially by the deceased member, although he was not legally obliged to do so.)

The trustees will look at both nominated beneficiaries and also financial dependants to come to a fair decision. This means that retirement annuities don’t rely only on a member’s will or nominations.

Momentum says that our courts and the Pensions Funds Adjudicator have held that any nomination made by a member is not binding on the trustees; it serves merely as a guide to the trustees and is one of the relevant factors that must be considered by the board in arriving at a fair distribution of the benefit. The trustees have 12 months to see whether there are other dependants besides the nominated ones.

Momentum says that in terms of section 37C (1) (a) of the Pension Funds Act, when the deceased is survived by only one dependant (either factual or legal), that dependant must receive the entire benefit. If there is more than one dependant (either factual or legal), the board has a duty to see that the benefit is distributed equally between them.

Where a benefit has been allocated to a major dependant or nominee, then, in the normal course of events, it should be paid directly to that dependant or nominee. 

10X says that the beneficiary may request the benefit to be paid out to them in cash, or that the funds be used to purchase a life or living annuity, or both a cash lump sum amount and a life or living annuity.  

5. Will his paid-up vehicle be given to the surviving spouse?

SARS says that a paid-up vehicle will go into your spouse’s deceased estate, as an asset, not a liability. So the executor of his estate will deal with it as an asset.

6. Do the adult children have a binding say if the surviving spouse intends selling the house for a smaller, safer abode? 

If your spouse’s will leaves the property to both the surviving spouse and the children (making them co-owners), then all co-owners must agree to the sale. All the beneficiaries must give written consent for the house to be sold, and the Master of the High Court must approve the sale.

A will might also grant a lifelong right to use and live in the property, called a usufruct, while the children inherit the actual ownership. In this case, the children own the property but cannot use or benefit from it while the spouse is alive. The property cannot be sold without the usufruct holder's consent or a court order. 

Legal Wise explains that if the deceased spouse did not leave a will, the deceased’s 50% of the joint estate will be divided between the surviving spouse and the children. The spouse will receive a child’s share or R250,000, whichever is greater, and the children will receive equal shares of the balance.

The intestate heirs of the deceased’s estate may nominate a person to be appointed as the executor, but the final decision of who should be the executor still lies with the Master of the High Court.

Wishing you the best,
Athalie