Distribution of deceased’s estate often causes anxiety

Yoliswa Dube @Yolisswa
THE estate of a deceased person always attracts the interest of relatives who often prey on the wealth like vultures.

In fewer instances, the beneficiaries of the deceased’s estate are never questioned.

But in many cases, from the moment one is buried, relatives start fighting over both movable and immovable property. They fight, literally and figuratively at times, completely forgetting and neglecting the children of the deceased in the process.

Some start to claim ownership of all kitchen appliances while others insist the deceased had promised to hand them one thing or the other.

It becomes worse when the deceased had “illegitimate” children or unsettled marital disputes.

The absence of a will makes the situation all the more delicate. But the law is pretty clear where estates and inheritances are concerned; however, people either don’t know anything of it or mystify the process.

“My parents were separated but still legally married when my father died. But at the time of his death, my father was customarily married to another woman. Two children were sired from that marriage. Now my step-mother wants the house that my mother bought while still together with my father. She claims it was their matrimonial home,” said Miss Lorraine Moyo, who is fighting for a fair share of her father’s estate.

Seven years after her father’s death, an executor of the estate has still not been appointed as her step-mother is fighting over the estate with her father’s relatives, she said.

“The situation has torn the family apart. She is driven by greed and doesn’t want me to benefit from my father’s estate. It has become difficult to resume administration of the estate. We’re actually set to have a special meeting over the matter. ”

Administration of an estate of a deceased person is the registering of the estate and the distribution of the property.

When a person dies leaving behind property, the nearest relative of the deceased must, within 14 days, register the estate of the deceased.

An estate is registered either at the High Court or at the

magistrates’ court.

“There’re procedures to be followed in administering a deceased person’s estate and we’ve failed to finish some of them because we don’t have the money. A certain percentage of the estate’s worth is needed and we don’t have the money. If we fail to pay it, they said the house in question will become property of the State and they can do whatever they want with it”

However, what should be a straightforward process becomes a frustrating one for some who are arm-twisted by corrupt officials into paying more money than they should in order for the deceased’s estate to be administered.

The law provides that upon the death of a person, his or her family, namely the wife or husband and children, have the right of use of the immovable property, household goods and effects, vehicles, animals and crops, which they were using immediately before the death of the deceased until the estate has been wound up.

If the deceased is survived by more than one wife and had more than one child then one third of his net estate is shared among his wives of which the first wife gets two thirds of that portion of the estate and the other wives get the remainder of the one third in equal shares.

The remaining two thirds of the net estate are shared equally among the deceased’s children or their descendants if any. “We didn’t have problems administering my mother’s estate. Of course it’s a delicate process which takes a bit of time but it was completed successfully,” said Mr Daniel Nsingo, who believes the system works, especially for the powerless when disputes within a family arise.

The law prefers the deceased’s spouse as a custodian of the estate’s property pending the appointment of an executor.

An executor is a person appointed to carry out the obligation of the deceased. Upon the death of the deceased, the Master of High Court will call upon the surviving spouse, if the person was married and five relatives of the deceased to an edict meeting where they can choose an executor. If they fail to do so then the Master of the High Court may appoint someone to be an executor.

The executor has to list the property of the deceased in an inventory, publish the estate in the Government Gazette and newspaper circulating in the district where the deceased resided at the time of his death to inform debtors and creditors so as to enable him to pay creditors and collect debts for the estate. The executor will then prepare an account, which shows what the deceased had and what he owed to creditors and distributes the estate property to the beneficiaries.

If the beneficiaries are not satisfied with the way the executor is performing his duties they can lodge a complaint with the Master of High Court who has the authority to remove him. “If the wives were living in different houses owned by the deceased person at the time of his death, then they each get ownership of the house and all household goods in the house in which they lived. If they all lived in one house and if it is impossible to get ownership then they will retain the right to use the house,” said Ms Nomsa Ncube, a lawyer.

She said in cases where the deceased is survived by one wife and one or more children, the surviving spouse should get ownership of or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased person’s death together with all household goods.

The children should each get an equal share from the remainder of the net of the estate, said Ms Ncube.

“If the deceased person is a woman who is survived by a husband with more than one wife and she had one or more children, the husband is entitled to a third of the net estate and the remainder goes to the children in equal shares. Where the deceased person is not survived by a spouse but by a child or children, then the net estate should devolve upon that child or those children in equal shares,” she said.

All legitimate children of the deceased should get an equal share each from the residue of the estate after the spouse has been given her entitlements.

Customary law marriages, whether registered or unregistered, are valid for the purpose of inheritance except if a person contracts a registered or unregistered customary law marriage when he is already married to someone else under the Marriage Act [Chapter 5:11] the customary marriage will not be valid.

If a woman marries under the Marriage Act [Chapter 5:11] a man who is already married under customary law to someone else, then the last marriage will be treated as a customary law marriage for purposes of inheritance.