In the past three weeks, I have been writing about a family trust — I discussed deceased estates in general without looking at the legal nature of a deceased estate.
A deceased estate, in simple terms, is the property or assets that belong to a dead person.
On the other hand, a trust is a legal arrangement in terms of which a donor or founder, also known as a settler entrusts the management or administration of his property or assets with trustees for the benefit of named beneficiaries.
At the death of a person, the estate is sort of frozen and cannot be dealt with without the necessary permission from the master of the High Court.
The process is that the master will appoint an executor to the estate who then will have the legal authority to act for and represent the deceased estate in any juristic / legal act.
Before this necessary authority is given, it is impossible to do anything for or on behalf of the estate.
The actual procedure is detailed below.
A deceased estate comes into existence when a person dies leaving property or a document which is a will or purports to be a will.
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Such estate must then be first registered, administered and distributed in terms of the deceased’s will or failing a valid will, in terms of the Deceased Estates Succession Act.
The procedure which must be followed to administer a deceased estate is prescribed by the Administration of Estates Act.
Deceased estates must be registered — I have met a lot of people who have not registered estates of their deceased relatives up to over 20 years. but they also cannot do anything to the estate because they have no legal rights to do so — you cannot sell or otherwise dispose of an unregistered deceased estate, you cannot transfer it to any of the beneficiaries names, you cannot even at law enter into any lawful lease for the property or do anything because the estate is at law frozen until an executor (male) or executrix (female) is appointed.
By way of an illustration, if you rent out a house that forms part of an unregistered deceased estate, you are sitting on a bomb because when “your tenant” refuses or fails to honour rentals, you cannot at law sue the tenant because you have no authority to do so.
It is only the executor/executrix who can do that!
The steps for estate registration are that you report to the Master or nearest magistrate:
The death of a person who dies within Zimbabwe and leaves property or any document that is a will or is intended as a will, and;
The death of a person who dies outside of the Zimbabwe, but who leaves property and/or any document that is a will or is intendedas a will, in Zimbabwe, must be reported to the master of the High Court.
The estate of a deceased person must be reported to the master of the High Court or magistrate within 14 days of the date of death.
The death must be reported by any person having control or possession of any property or document that is or intended to be a will of the deceased.
So technically the surviving spouse must report the death, if there is none, then the child or near relative who is the responsible person must report the death.
You report the estate through completing a death notice form as well as the property inventory form at the Master or magistrate’s office.
The property inventory form is a form where you put details of all the assets of the deceased.
Where the deceased jointly owned a property with a surviving spouse, the property will also be listed.
Property donated to a family trust does not form part of a deceased estate.
However, note that in terms of the Estate Duty Act, any donations made to a family trust less than 5 years before the deceased’s death will still be deemed to be part of the deceased’s estate — it is therefore critical that properties are registered in trust at the point of acquiring the property because that is not a donation.
A donation is where you transfer title of a property that is formally in your name to the trust.
After registration of an estate and filing in of the inventory form, the Master will invite the family and near relatives of the deceased to an edict meeting for the purposes of appointing an executor.
Where the deceased has a surviving spouse under a civil marriage, the Master usually uses a shorter process of summary administration after completing necessary documents and running two sets of adverts in the local newspaper and the government gazette.
All this process is avoided when one has used a trust to hold family properties.
So where the deceased left a will, her wishes will be respected and an executor nominated in the will shall be appointed without need for an edict meeting.
It may occur that at the edict meeting, the office of executor is being contested, the master of High Court will have to appoint a neutral executor.
In the normal course of things however, the surviving spouse, where present, is the first preference for the executor/executrix position.
Once appointed, the executor/executrix will be issued with Letters of Administration which in essence gives him/her the necessary authority to act for and wind up the estate.
In the African society, relatives of the deceased are usually tempted by the spirit of greed to forcefully grab part of the deceased’s estate on flimsy grounds that the assets belong to their “child”, “brother”, “sister” and so on.
That is unlawful and attracts heavy criminal penalties.
On the side of a deceased woman, relatives also claim that they want to take all household property as belonging to their “child” usually to the detriment of the surviving children of the deceased.
While society may recognise that there could be certain items like clothing which customarily goes to the deceased relatives, property grabbing of any assets of the deceased to the prejudice of the deceased’s immediate family is legally outlawed.
If the surviving spouse faces problems of property grabbing, they should immediately report the matter to the nearest police station, as the law does not permit anybody to remove any of the deceased person’s property before the estate has been wound up.
This article is not meant to be exhaustive or legal advice but produced and shared for public benefit.
Should you need specific advice on your estate or family trusts, it is good to seek professional advice.
Majachani is an attorney with ALEX F AND ASSOCIATES, he can be reached on 0712553454 or [email protected]