My father has passed away and I have inherited his property

A Blog article by: Tania Abbotts 

 

My father has passed away and I have inherited his property – I am struggling to evict the current tenants – is it possible to evict before it has been transferred into my name? Would a letter of executorship be relevant in this situation? What about notice in terms of the rental agreement? 

 

If a person passes away and has a last will and testament, then as legal practitioners, we administer the estate as per the directions set out in the last will and testament. This means that the deceased would have elected who would be the executor of the estate, and who would benefit from what asset. If a person becomes deceased and does not have a last will and testament, then we administer the estate intestate. This means that an heir would need to apply to the master of the high court to be appointed as executor and then administer the estate accordingly with the master of the high court’s consent.  

 

In the case of inheriting any assets, the asset only transfers from the deceased estate to the beneficiary once the deceased estate is finalised and in the case of immovable property, ownership passes when it is transferred from the deceased estate and into the beneficiary’s name. This is done through a conveyancing attorney who then reflects the change of ownership at the Deeds Office, on the immovable property title deed.  

 

This means that whilst the beneficiary may have “inherited” the asset, they have no control over the said asset and cannot receive any benefit in respect of same, nor can they encumber the asset until the deceased estate is finalised and the ownership of the asset is transferred.  

 

Therefore, if the property is being rented out, rental fees must be paid to the deceased estate. If the tenant stops paying rent, the executor, on behalf of the deceased estate, should bring legal action against the tenant. Any amount collected from such legal action will be for the benefit of the deceased estate. Any costs incurred will equally be for the deceased estate’s account.  

 

This also means that a beneficiary will not be able to evict the tenants. Any eviction will need to be brought by the executor of the deceased estate. The letter of executorship will need to be attached to the eviction application in order to prove the executor’s authority and legal standing to act on behalf of the deceased estate.  

 

For more information: Tania Abbotts – TAbbotts@hammondpole.co.za