Majority of properties in townships registered in the names of deceased people are often referred to as “family homes/houses”. For many occupants of such properties, family homes/houses belong collectively to multigenerational lineages, notwithstanding that the title deed is still registered in the names of the deceased nor deceased estate has not been administered. Often, a group of siblings is at the core. Family members might build extra structures on the site to live in or they might come and go, but the home is a place to return to.
The family house is usually contested, and most arguments are based on what the family members consider to be fair not based on who owns the house or the provisions of the law. People want the property to remain a family house and for it to move from generation to generation, not from an individual to another.
How to remedy conflicts in family homes?
· Beneficiaries of properties should report the deceased estates at masters office.
· Administer the deceased estates up to finality and deal with the transfer of the immovable property to entitled beneficiaries in terms of a will or intestate succession.
· The property may be registered in the names of all the entitled beneficiaries. However, shares of beneficiaries who married in community of property may form part of their joint estate unless such community of property is expressly excluded by the terms of a will of the deceased
Remedy to retain a family house from generation to generation.
Registration of Family Trust
Advantages of the above are as follows: –
· Asset protection – property is transferred into the names of a trust not to individuals, therefore creditors of the trustee or beneficiary can have no claim against the trust.
· Protection from community of property – Trust assets do not form part of Trustees’ marriages in community of property unless the trust in question is declared by a court of law to be merely an alter ego of the trustees.
· Continuity/perpetual succession – Trust will not be affected by the death of the founder/trustee; it will continue to operate in terms of the provisions of the trust deed. However, upon the death of a beneficiary, only the portion of the trust assets that vests in that beneficiary on date of death, would form part of the beneficiary’s estate for purposes of estate duty.
The content of this article is intended to provide a general guide to the subject matter. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Contact your attorney for legal advice
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