Written for Property Poser

This week our Property Poser panel helps a reader who is uncertain about what the heirs can do with a property that forms part of a deceased estate.

The reader explains that she is currently living in a property that belonged to a deceased family member and she now wishes to make an offer to purchase on it.

She does not mention how long ago the family member passed away but it appears that the transfer from the estate to the ultimate beneficiary has not yet taken place.

The matter is further complicated by the fact that another family member shares the residence but is unemployed and does not care too much about the state of the property.

The reader, on the other hand, has spent a substantial amount of money on maintenance and renovations to the house. She would like to know what her rights are and whether she could make an offer to purchase on the property.

Unfortunately, a few important questions remain unanswered, says Rian du Toit from DTS Attorneys in Port Elizabeth.

“The main concern is who the rightful heir of the property is in terms of the deceased’s will.”

Du Toit says this person may give the executor of the will the authority to sell the property out of the estate, which means that the sale takes place before it is transferred to the heir.

“He or she will then be entitled to the cash from the proceeds of the sale, instead of the property itself.”

It is, of course, also the prerogative of the heir not to sell, says Du Toit. “The reader may then have a claim against the estate for the money spent on improvements and renovations.”

Du Toit says she does not, however, clarify whether these expenses were incurred with a view to purchasing the property or on the instruction of another person.

It is often unwise to spend money on a property you do not own, says Charlotte Vermaak from Chas Everitt in PE. “Taking the necessary legal steps to recover the expenditure can incur additional costs.”

In the meantime, the rightful owner of the property is enriched at the expense of the person who spent the money, says Vermaak.

“The reader may have an action for either the recovery of the actual costs incurred or the enrichment attributed to the owner.”

Vermaak notes that she has not mentioned who the executor of the estate is. “This person will be the correct one to approach about determining what is to happen with the property.”

According to Vermaak, the executor is in charge of distributing assets to the rightful heirs and settling liabilities in line with the will of the deceased.

“If there was no will, the executor determines who the heirs are in terms of the provisions of intestate succession.”

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