Childless and single persons’ inheritance

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MIRIAM TOSE MAJOME

As lawyers we dedicate a lot of time and effort discussing, deciphering and explaining the deceased estates of married people and their offspring.

By MIRIAM TOSE MAJOME

The generally-held assumption, albeit erroneous, mistaken and misguided, is that every adult person is married and has a spouse and children to leave their inheritance to when they pass on. We lawyers are guilty of forgetting the thousands of men and women who never get married or never remarry after a divorce or never have children altogether.

Much earlier this year we looked at the rather curious and interesting estate of the adventurer pioneer colonialist Cecil John Rhodes who died unmarried and childless, but left a very well-endowed estate last century, but which lives on and thrives to this day. It is said Cecil John Rhodes never forgave his friends who got soft and decided to get married.

He left a very detailed will to take care of his vast wealth and inheritance despite not having a spouse or children to leave his inexhaustible wealth to. His will is a component of Zimbabwe’s statutory law with an entire parliamentary act dedicated to the will namely the Rhodes Estate Act Chapter 20:17 which is binding and protected for posterity by the Zimbabwe Government.

In this day and age there are hundreds of thousands of single and childless men and women who remain unmarried or childless either by choice or circumstance.

Yet these men and women work very hard and accumulate wealth and property which they leave behind when they die. It can be said that having no external pressing day-to-day financial obligations and pressures brought on by children and spouses they actually accumulate more wealth than married people with children. What happens to the property of these childless or unmarried people after they die?

Who claims their property and by what right do they claim it if there are no spouses or children to inherit it?

The Law

The Administration of Estates Act (Chapter 6:) governs deceased estates. The Act also governs the estates of minors, mentally-disordered or defective persons and persons absent from Zimbabwe.

The Act also provides for the control of moneys belonging to persons whose whereabouts are unknown, ie, missing persons. The Act sets the rules and guidelines for running the affairs of people who for the mentioned circumstances are unable to handle their own affairs or are limited for whatever reason.

The Act aims at protecting the estates of people who are unable or unavailable to protect their own estates and run their own affairs.

Requirement to give Death Notice

Everyone single or married, young or old rich or poor owns property in one way or the other and it needs to be protected and managed after the person dies.

It is a legal requirement to give formal death notice to the Master, Assistant Master within 14 days if the person dies and leaves property or leaves a will.

It is the duty of the nearest relative, next of kin or anyone concerned with the deceased who is near the place of death to notify the Master’s Office of the death.

It is a criminal offence to fail to give such notice if the person owned property. As it is many people throughout the country have not registered the estates of their deceased relatives such as parents, siblings etc and are with just using the assets or simply don’t know what to do with it.

Using or disposing of a deceased person’s property without the Master’s consent is a serious criminal offence. Some people purposefully fail to register estates to take advantage of the assets and the owner’s permanent absence. Many people act out of sheer ignorance of the law and not malice, but this needs to be corrected so that they are compliant with the law.

Single childless people

This where the importance of drafting wills is most seen. Single and childless people should by all means strive to write and leave behind valid wills that determine how they want their property to be administered and distributed among their relatives and friends.

There is an unwritten code particularly in local African cultures that the estates of people who die childless and single can be plundered at will because that property “belongs to no one”. Section 68F (f) states that where the deceased person is not survived by a spouse or child the net estate should devolve upon the person’s surviving parents, brothers and sisters in equal shares if they have any brothers and sisters and parents.

This means if there is no valid will left behind the property in the estate must be sold and distributed equally among all the mentioned available family members. If there are no parents or siblings the property could be passed on to the closest identifiable relatives such as grandparents, nephews and nieces.

The law is silent on instances where the deceased person had no known relatives. In such a case the property would truly belong to nobody and is called res nullius. In this case anybody at all could own the property legally by prescription if it remains unclaimed for a period of up to 30 years. The property could also be forfeited to the State if nobody claims it.

Interestingly there are a number of abandoned properties in urban areas left behind, unclaimed or forgotten by unknown and forgotten landlords of mostly European and foreign descent who left the country after independence and died in foreign lands.

Married childless people

Section 68g states that where a deceased person is survived by a spouse, but had no children the surviving spouse should get ownership of the house and the household contents and half of the remainder of the net estate. The other half of the estate is inherited by the deceased’s person’s surviving parents and brothers and sisters in equal shares.

Section 68(h) states that if the deceased person is not survived by a spouse and had one or more children the net estate should devolve upon the sole surviving child or the children in equal shares and their descendants. This means a single person’s grandchildren can inherit from their estate.

Generally a person’s estate will and should be applied to meeting the basic needs of the heirs and beneficiaries who are most in need of it. The Master will have to intervene and see to it that this is done and reflected in the distribution account.

For example it will not make sense to bequeath property to some of the deceased’s financially independent adult children when there are orphaned minor grandchildren who still require basic maintenance.

Equitable distribution of the deceased estate amongst heirs and beneficiaries and avoidance of abuse and plunder by any party is the goal of estate administration.