Answer to a question from a reader

My uncle is my late grandmother's only surviving child but he has his own house. Who gets her house?

The short answer

Your uncle and your deceased father get equal shares. Your father's share is divided between his surviving children.

The whole question

Dear Athalie

My siblings and I were raised by our parents and grandmother in my grandmother's house. This was because my grandmother wanted us all to be together, even though my parents have their own house that they are renting out. Unfortunately, both my grandmother and my father (her son) have passed away. My siblings, our mother and I still live in the same house, along with two of my late aunt's children who my mother is raising. Recently, we've been hearing rumours that my uncle (my grandmother's only surviving child) wants to sell the house, even though he has his own house. Is he allowed to do that?

The long answer

If your grandmother left a will, the heirs would be named in the will. If she did not have a will, the law of Intestate Succession applies. This is based on blood relationship in the following order:

  • The spouse/s of the deceased

  • The descendants of the deceased 

Where the deceased is survived by a descendant, but not by a spouse, the descendant inherits the intestate estate. The estate is divided into as many equal portions as there are surviving children and deceased children who leave descendants. Each surviving child takes one share, termed a 'child’s share'. The share of each deceased child is divided equally among his surviving children, and each group of descendants of a deceased child. 

So, in your situation, as your uncle is the surviving descendant of your grandmother, he takes one share, called a 'child’s share'.  As your father is a deceased child of your grandmother, his one share is divided equally among you and your siblings who are his surviving children. 

When someone dies, their estate must be administered by an Executor appointed by the Master of the High Court if the estate is worth more than R250,000, or by a Representative nominated by the family and given a Letter of Authority by the court, if the estate is worth less than R250,000.

The Representative has to see to it that all the debts of your grandmother are paid. After that, the property is transferred to the heirs;  your uncle, and you and your siblings. 

The property can only be sold with the written permission of all the heirs, or if there isn’t enough cash in the estate to pay all the debts. In that case, the Representative must first pay off the debts with the money from the sale of the house and then distribute what remains to the heirs.

If the property was to be sold, the Representative would have to get permission from the Master of the High Court (who gives the Letter of Authority) to sell the property. The Representative would have to show him documents such as the signed permission of all the heirs to sell the property and a signed offer to purchase from a buyer. The Master must be satisfied that the property is being sold at market value, and that all the rightful heirs and what they would inherit have been identified. 

Government policy is that RDP houses should remain in the family if possible, rather than be sold. What might make matters more complicated is that you and your siblings would also be beneficiaries of your parents’ house, which your mother is renting out, when your mother passes.

Perhaps the best thing to do would be to call a family meeting and invite your uncle so that the whole situation can be discussed and clarified, and a decision taken about the best way forward, including the nomination of a Representative. 

If you need legal advice, you could contact The Legal Resources Centre:

Email: [email protected]

Johannesburg: 011 038 9709

Cape Town: 021 879 2398

Makhanda: 046 622 9230

Wishing you the best,

Answered on March 19, 2021, 11:44 a.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.