The short answer
It is illegal not to report a deceased estate. Perhaps telling your sibling this will spur them to action. Otherwise you can approach the Master's office for help.
The whole question
My mother passed away in 2017, leaving me and my sister behind. There was no will and no executor appointed. My sister is withholding all the documents and hasn't reported the deceased estate because her son is receiving rent from tenants living on my mother's property.
I managed to get copies of all the necessary documents so that I can report the estate, but I need my sister to sign the Next of Kin Affidavit or the Nominations form for the appointment of an executor of an intestate estate, and she refuses to do so.
Is there a way for me to recover a portion of the rent being paid to her son seeing as I am a beneficiary to the estate?
The long answer
Firstly, a death is required to be reported to the Master’s office within 14 days, and the fieldslaw.co.za lectures quote the Administration of Estates Act of 1965 as follows:
“Penalty for not reporting - Section 102
“Any person who contravenes or fails to comply with Section 7 (which is reporting a death) shall be guilty of an offence & liable on conviction to a fine or to imprisonment for a period not exceeding 3 months.”
Thus, it is clearly illegal for your mother’s death to have gone unreported for five years.
The Estates Act goes on to say, “Any person who fails to comply with the provisions of paragraph (b) of subsection (1) shall, apart from any penalty or other liability he may incur thereby, be liable for any estate duties payable in respect of the property concerned.”
The Department of Justice and Constitutional Development says: “At death the estate of the deceased person is frozen, and no-one may withdraw funds from the deceased’s bank accounts or deal with any of the estate assets without the necessary permission from the Master of the High Court.”
Accordingly, it would seem that your sister and her son are illegally drawing rental from an unreported deceased estate.
You should perhaps make your sister aware that her refusal to comply with the law to report a deceased estate by refusing to sign the Next of Kin Affidavit and Nomination forms and submit her ID constitutes an offence.
When a death is reported, a deceased estate comes into being, and no one is authorised to act on behalf of the estate until an executor is appointed. The Administration of Estates Act says that a person who is in possession of a property or document, except for a will, can retain the possession of that property or document, unless the Master or the Court says otherwise, until an executor has been appointed. Fieldslaw.co.za also says that in the interim period before an executor is appointed, institutions like banks, insurance, and pensions can be notified of the death by sending a copy of the death certificate.
In terms of the tenants in your late mother’s property who are presently paying rent to your sister and her son, this is what generally happens to tenants in a deceased estate, says Fitzanne Estates:
“Tenants are usually not required to move out upon the death of the landlord because lease agreements typically continue after his or her passing.
“After paying out the legatees, the executor of the landlord’s estate will take over estate administration and transfer the “residue” to the heirs. The lease’s rights and obligations will also be transferred to the heirs through this process.
“Most commonly, the heirs will simply 'inherit' the lease as it is and become the legal successors to the deceased landlord, meaning that there will be no immediate change for the tenant.
“While the estate is still being wrapped up, the monthly rental fees should be paid to the Executor of the Estate.”
Perhaps the place to start is by asking for an appointment at the Master’s office to get advice on how to approach the problem of the unreported deceased estate given that your sister, as the other heir, refuses to give her ID or signature in the required forms. These are the contact details:
Master of the High Court helpline:
Tel: 012 315 1207
Without actually reporting the deceased estate, you may not benefit from the rental presently being drawn by your sister and her son, as it would put you outside the law, just as they presently are. But in the interim period before an executor is appointed, you could ask the Master to order that pending the appointment of the executor, you be recompensed for your share of the rental, or at least given the assurance that once the executor is appointed, you will receive what is owing to you.
It’s important to note that the law says that “…every decision, ruling, order, direction or taxation by the Master under this Act shall be subject to appeal to or review by the Court upon motion at the instance of any person aggrieved thereby, and the Court may on any such appeal or review confirm, set aside or vary the appointment, decision, ruling, order, direction or taxation…”
If you are not assisted by the Master’s Office, you may have to approach the Court.
You can approach Legal Aid (which is a means-tested organisation) for free legal advice and assistance, but if you do not qualify in terms of income, you will have to seek legal representation.
These are the Legal Aid contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
Wishing you the best,
Answered on Sept. 19, 2022, 4:41 p.m.
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