Deceased Estate help!?

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dammert89

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Good day

My mother recently passed away and due to our financial situation (Me and my sister), we cannot afford a lawyer to deal with the deceased estate, I am a trainee accountant (study debt) and she is currently between jobs.

Here's the story:
My mother and father divorced in 2013, So he has no authority on the matter, I have researched online on the procedures of winding up the estate. She was sick (renal failure), and unfortunately did not leave a will so it will be intestate.

The house where my sister resides is currently financed by a joint homeloan between my mother and father, my father made all the homeloan payments as my mother was unable to work due to her condition. I am wondering if my father can take over the homeloan payments (he is willing to do so). My mother owned the house (+-R950 000), a car (Fiat uno), and a trailer. The home loan is currently at about R500 000. I would like to know if it would be possible to keep the house. I don't want the Master of the high court to make us sell the house to pay the homeloan which my father pays monthly anyway because then my sister will not have a place to stay.

I also need someone to guide me through the whole process, I know the basics that I have come across but would like to have someone assist me for when I have questions.

She passed away on 6/10/2015 and from what I have researched it says the passing must be reported to the Master of the high court within 14 days.

I have downloaded the forms that must be submitted by me to the high court and I assume that they will appoint me as executor. I have managed to get together the money for the funeral. So that is at least sorted out.

Thank you in advance
Regards
Michael
 
If you can't afford an attorney check with your bank if they will do it.

It is too involved to deal with on your own. You are going to have to draft a liquidation and distribution account, advertise for creditors, and several other things that need to be done with in a particular period. The Master will keep bouncing you until everything is perfect. The L&D account alone will keep you up at night.

You will also need to find the divorce order and see if there is a separate settlement agreement between your folks. Sometimes divorced couples don't stick to the order and you end up in the situation where the court has ordered one thing, and the divorcees have decided something different. Without a will that directs otherwise, the Master will default to the court order.

If you want to retain the house it will have to be in consultation with the bank and other creditors. If there is no residue left in the estate it will be a problem.

Rather find a professional. Not all attorneys are unaffordable. Phone around.
 
Yeah this going to be a tricky one. From the value involved the master of the high court would want to have a lawyer appointed for oversight. Personally I think that is a load of bs and any capable person should be allowed to wind up an estate. You are in the situation where you have options. Go shop around for a lawyer that will do it for a 1-2% fee. That will still amount to R10,000-R20,000 plus cart and transport costs for getting the house off her name. It's a rather complicated estate so a lawyer would want a reasonable compensation but if you offer to do the leg work and work with the bank you can negotiate a lower fee.

Don't worry about the 14 days. It's a guideline but it almost never happens because there's always issues in contacting the executor or like in this case with no executor a bunch of uncertainty. It shouldn't be a problem if there's no creditors that have to be paid.
 
I just read it in depth again. The joint home loan would become a liability for the surviving person. Your father would just have to sign documents that it is now solely his responsibility. The house can be transferred to your sister with permission from the bank as it's probably collateral for the loan. The only thing a lawyer would need to do is the standard estate stuff and cart and transport for which they'd be paid separately.
 
Thanks for the quick replies.

I have spoken to my father and told him to go to the bank and sign over the homeloan responsibility to himself as well, He will do that ASAP. He is willing to have the whole house transferred to me and my sister, She get's my mothers half and I get my fathers half. He will still be making the homeloan payments. So hopefully the bank will not have a problem with this. If that can get sorted out, the estate will be a really simple one.

Another question, I went through my mothers paperwork and found out that she had a retirement annuity with death benefits, Does this form part of the estate or is it seperate?
 
dammert89 said:
Thanks for the quick replies.

I have spoken to my father and told him to go to the bank and sign over the homeloan responsibility to himself as well, He will do that ASAP. He is willing to have the whole house transferred to me and my sister, She get's my mothers half and I get my fathers half. He will still be making the homeloan payments. So hopefully the bank will not have a problem with this. If that can get sorted out, the estate will be a really simple one.

Another question, I went through my mothers paperwork and found out that she had a retirement annuity with death benefits, Does this form part of the estate or is it seperate?
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Why don't you rather go to the Master of the High Court and speak to someone there. Yes, I had to leave and go back once or twice on a family members' estate, to get required documents and affidavits, but they guided and helped me through the whole process.
 
2 options here. Go to an attorney and agree to a percentage of the fee when the estate is tied up and submitted to the Master. The other option which you would most likely choose is to go to the local court in the area in which your mother resided and speak to the estates officer there. They usually have an office where you can be assisted. Things to look out for though are declaring certain assets which would be subjected to estate duty tax which you want to avoid hence a qualified legal professional on option 1. Banks don't care about you so don't even bother with that. They will also extract a fee from the estate.
 
Okay so all in all I can get the lawyer to come down to 1-2%, R5 000-R10 000. Then I read there is no transfer duty on deceased estates?? The conveyancer fee of about R7 500. And then all the little fees like postage documents etc +- R5000. So this will all in all cost around R17 500 - R22 500? Ugh... where do I get that kind of money now?
 
dammert89 said:
I have spoken to my father and told him to go to the bank and sign over the homeloan responsibility to himself as well, He will do that ASAP. He is willing to have the whole house transferred to me and my sister, She get's my mothers half and I get my fathers half. He will still be making the homeloan payments. So hopefully the bank will not have a problem with this. If that can get sorted out, the estate will be a really simple one.

Another question, I went through my mothers paperwork and found out that she had a retirement annuity with death benefits, Does this form part of the estate or is it seperate?
Click to expand...

Your parents were divorced in 2013, yet they were still both paying the bond? This is unusual. If the bond was granted after the divorce I can understand this, but if the bond was granted before the divorce it would have to have been dealt with in the divorce order. Until you determine in whom the property vested at the date of divorce you are going to have a potential complication. You currently have no way of knowing how much your mother owed on the house. The court order or settlement agreement could have vested the entire or only part of the property in your mothers name. Her liability will depend on this proportion.

As far as the retirement annuity with death benefits is concerned it is not a clear cut answer. If your mother named specific beneficiaries when signing up to the annuities then there is a rebuttable presumption that she intended the named person to inherit it, and it will fall outside her estate. If there is no beneficary or none that are capable of inheriting, then it will fall into the estate.

Try this link. There have been amendments to the law since it was drafted, but it should still be useful.
 
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If you want to transfer the house into your and your sister's names then the home loan will have to be in your names.

If you transfer the half-share that your Dad owns to yourselves it will be subject to transfer duties.

The existing home loan needs to be cancelled and re-registered into your names. That is going to cost you.

The winding up of the estate is easy and should not be a problem but you are going to need a lawyer somewhere down the line to handle the property.

Make an appointment with a lawyer and discuss it with him, he will be in a position to give you a quote for the conveyancing work that needs to be done.

Start saving the money for everything and keep the status quo until you have the funds to do all this.
 
dammert89 said:
Thanks for the quick replies.

I have spoken to my father and told him to go to the bank and sign over the homeloan responsibility to himself as well, He will do that ASAP. He is willing to have the whole house transferred to me and my sister, She get's my mothers half and I get my fathers half. He will still be making the homeloan payments. So hopefully the bank will not have a problem with this. If that can get sorted out, the estate will be a really simple one.

Another question, I went through my mothers paperwork and found out that she had a retirement annuity with death benefits, Does this form part of the estate or is it seperate?
Click to expand...
The annuity doesn't form part of the estate as it isn't an asset at the time of death. If there are no clear beneficiaries however and it's a lump sum it will pay into the estate.

dammert89 said:
Okay so all in all I can get the lawyer to come down to 1-2%, R5 000-R10 000. Then I read there is no transfer duty on deceased estates?? The conveyancer fee of about R7 500. And then all the little fees like postage documents etc +- R5000. So this will all in all cost around R17 500 - R22 500? Ugh... where do I get that kind of money now?
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1% of the estate according to the value you gave is around R10,000 and not R5,000. I don't know what transfer duties there are. My brother transferred a property for R3,500 and we both still want to know if that was for SARS or the lawyer. You can speak to the bank about extending the loan to cover the fees if your father agrees or set up a payment plan with the lawyer doing the estate.

seted said:
Your parents were divorced in 2013, yet they were still both paying the bond? This is unusual. If the bond was granted after the divorce I can understand this, but if the bond was granted before the divorce it would have to have been dealt with in the divorce order. Until you determine in whom the property vested at the date of divorce you are going to have a potential complication. You currently have no way of knowing how much your mother owed on the house. The court order or settlement agreement could have vested the entire or only part of the property in your mothers name. Her liability will depend on this proportion.
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If his father doesn't dispute it there's no problem. The property is in his mother's name so the lawyer can do the transfer to him and his sister.
 
Capital gain tax could be a problem aswell if house is transferred
 
thehuman said:
Capital gain tax could be a problem aswell if house is transferred
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It's an inheritance not a sale. First R1.5m is free. After that there's a 20% tax. Something that should have been done away with long ago. Anything above that left to a spouse is free.
 
Condolences.
An attorney gets paid upfront and they tend to drag things out.
A bank gets paid on finalisation so they are quicker.
IMO the bank is your best bet.
 
Hemi300c said:
Condolences.
An attorney gets paid upfront and they tend to drag things out.
A bank gets paid on finalisation so they are quicker.
IMO the bank is your best bet.
Click to expand...
I've heard banks are tricky to deal with (impersonal) and take forever.
 
AntiGanda said:
I've heard banks are tricky to deal with (impersonal) and take forever.
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Attorney would be easier to negotiate with as well. Bank is too structured so would want their 3.5%
 
An attorney also gets paid on finalisation and as said will cost you less. You can negotiate a good fee if you do most of the work yourself.
 
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