Can my mother sell my late father's house though it is not in her name?

The long answer

You don’t say whether the house was in your late father’s name, so that may be the first question to clear up.

If it was in his name, and he died without leaving a will, the Intestate Succession Act allows his property and goods (called the estate) to be divided between the surviving wife or husband and the children, with the surviving wife or husband getting at least R125,000, if the estate was worth that much. (If the estate is worth less than R50,000, your father’s death can be reported to the magistrates court instead of the Master of the High Court.)

So if the house was in his name and he did not leave a will, your mother would inherit the house and share any other benefits with the children. She would still need to have the title deed transferred to her name if she wanted to sell it. This transfer is done by a conveyancing attorney and can cost as much as R7,800, so it might be worth asking the municipality if they can assist your mother to do it.

If the house was not in your father’s name, do you know whose name it was in? If your father and mother bought the house without a title deed, is there some proof that they bought it, like an affidavit signed by the seller and the buyer? The title deed is the only legal proof of ownership, but many RDP houses without title deeds have been sold informally through the seller and buyer signing an affidavit.   

Once you know the answers to these questions, you could ask Legal Aid for assistance to see how the house can be transferred to your mother’s name, or to help get a declaration from the high court that the house belongs to your mother.

This is Legal Aid’s Advice Line (toll-free): 0800 110 110

This is their Please-Call-Me number: 070 635 717