Answer to a question from a reader

Does my late brother's child have a claim to our late mother's RDP house?

The short answer

Yes, the Intestate Succession Act applies because your mother did not leave a will

The whole question

Dear Athalie

My late mother had an RDP house. She had four children of which I am the last living. My mother used to tell me and my sister that we are the beneficiaries of her house and that the other two must apply for their own houses because they are older. When my mother died, I went to the deed's office and found that only my mother is listed. Since then, my late brother's ex has called me claiming that her child is entitled to a share of my mother's property because she didn't leave a will. Is this true? 

The long answer

Thank you for your email asking if your late brother’s child has a claim to your late mother’s RDP house when she did not leave a will and you are her only surviving child.

When a person doesn’t leave a will, their estate is divided up in terms of the Intestate Succession Act of 1987. This is the order of inheritance under the Act: First, the spouse/s of the deceased; second, the descendants of the deceased.

If there is no surviving spouse, the descendants inherit the 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, called 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, you as the surviving descendant take one child’s share of the estate. Your late brother’s one share is divided equally between his surviving children. If he has only one surviving child, his share goes to this child. In that case, the estate would be divided between the two of you.

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 late mother are paid. After that, the property must be transferred to the heirs, who would be you and your brother’s child. 

The representative can only sell the property if there is not enough money to pay the debts without selling it, or if they get written permission from the heirs to sell it. 

Wishing you the best,

Answered on May 28, 2021, 2:08 p.m.

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