Answer to a question from a reader

My aunt wants to transfer my late grandmother's house to her child. How can we keep the house as a family house?

The short answer

If your grandmother died without a will, her estate should be divided equally between her children.

The whole question

Dear Athalie

My grandmother passed away in 2001. My aunt stayed at the house until my uncle was released from prison in 2003. He stayed there until his death in 2009. My grandmother still has two surviving children, although they both have their own homes. My aunt rented out my grandmother's house from 2010 to 2018, and then she moved her son and his girlfriend into the house. None of this was communicated with my mother.

At the end of May, my mother, sister and I went to the Drakenstein municipality housing office to check the status of the house, only to find that it had been transferred to my cousin's name. We disputed this and the municipality advised us that the process will be put on hold until further notice. The unit still belongs to the council, so there is no title deed for my grandmother's house. 

Can you please explain what steps we need to take to keep the house as a family house?

The long answer

It’s good that the municipality has put the transfer process on hold as this gives you some time to sort it out. If your grandmother had made a will before she died, she could have left the house to your cousin if she wanted to. But if she died without a will, it falls under the Intestate Succession Act and that means that the house is inherited in the following order:

  • The spouse of the deceased

  • The descendants of the deceased

  • The parents of the deceased (only if the deceased died without surviving spouse or descendants)

  • The siblings of the deceased (only if one or both parents are predeceased)

  • When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.

  • When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but each wife should inherit at least R250,000

    • When the estate is not large enough to allow each wife to inherit R250,000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.

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, your mother and her sister are the surviving descendants and as the surviving descendants will each take one child’s share of the estate. Your late uncle is a deceased descendant and his one share will be divided equally between his surviving children if there are any. If he has no surviving children or grandchildren, the estate is divided equally between your mother and her sister.

In other words, your aunt cannot transfer ownership of the house to her child, as your mother owns an equal share of the house.

When someone dies, their estate must be administered 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 grandmother are paid. After that, the property must be transferred to the heirs, who would be your mother and her sister. 

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. 

Was your mother’s sister perhaps nominated by the family to have the Letter of Authority to administer your grandmother’s estate? 

If it is possible to call a family meeting where all this can be explained and discussed to find the best way forward, this might be a good idea.

You could also contact the Housing Enquiries of the Department of Human Settlements at the toll-free customer service hotline and ask them to assist you to settle the problem of the house with the municipality. 

You can contact them at: 0800 146 873 / 012 421 1915.

You could also approach Legal Aid to assist you to settle the problem of the house with the municipality. Legal Aid is a means-tested organisation that must assist people who cannot afford a lawyer.

These are the contact details for Legal Aid:

  • Advice Line (Toll-free): 0800 110 110

  • Ethics Hotline: 0800 153 728

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on June 11, 2021, 1:10 p.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.