Children have a right to inherit from their deceased parent or parents’ estate.
The law provides that all children, whether born in or out of wedlock, have a right to inherit. Even the children that appear, for the first time, at a parent’s funeral claiming to be the children of the deceased have a right to inherit their parent’s property. Recently, the High Court in the case of Bhila v Master of the High Court & Others held that children born out of wedlock should not be discriminated against when it comes to inheritance. The judge held that children born out of wedlock have a right to inherit on the basis that Section 56 of the Constitution outlaws discrimination on the grounds of whether children were born in or out of wedlock.
Executor’s role in protecting the children’s right to inherit
The law provides that an executor should be appointed with the role of administering the estate of the deceased. The executor should be a neutral person who takes into account the interests of all beneficiaries. An executor can be removed (relieved of his or her duties) if he or she does not act in the best interests of all the beneficiaries.
The Executor has a role, in terms of Section 50 of the Administration of Estates Act; if he or she finds out that a minor child (below 18 years) without a lawful guardian has any valid right or claim to the estate that the Executor is administering, to forward a statement to the Master of the High Court. The statement should state the name of the minor child, and specify the nature and value of the property to which such minor child has a right or claim. The Executor should ensure that the best interests of the child are taken into account in distributing the estate.
What can children inherit?
If the deceased parent had a will, it supersedes everything. In other words, a will overrides any other methods of sharing property that may be set out in other laws. What the deceased person writes in the will and who he chooses to give his or her property to, is what is done and who gets it.
If there is no will, the law stipulates that the surviving spouse inherits the matrimonial home and all the household goods in it. If the deceased had other assets in addition to the matrimonial home, children share the remaining property in equal shares despite the fact that they are born in or out of wedlock.
Children have the right to use the matrimonial home inherited by the spouse. However, problems arise when the remaining spouse decides to sell the home. As far as the law is concerned, it is legal for a surviving spouse to dispose of the property which he or she inherits from a deceased spouse if he or she so wishes.
The problem with this position however is that children are then left homeless. There is a gap in our law in that respect as children are not protected from homelessness when the surviving spouse decides to sell the matrimonial home.
Claiming maintenance from deceased’s estate
Children can claim maintenance from the estate. In some instances where the winding up of the estate remains pending, children may require school fess and money for daily upkeep. They can apply for maintenance from the estate.
The Deceased Persons Family Maintenance Act provides that any person who was being maintained by the deceased may make an application for an award of maintenance from the net estate of the deceased.
This application should be made within three (3) months from the date when the executor is granted letters of administration or within three (3) months from the date on which the deceased person dies.
If an application for maintenance is made in terms of this Act, no distribution of the net estate of the deceased concerned shall take place until the application is finally determined.
A dependant should make this application to the Master of the High Court if the estate is registered at the High Court. If the estate is registered at the Magistrate Court, the dependant can make an application for maintenance from the estate before a Magistrate.
Upon receiving the application, the Master of the High Court or the Magistrate may make initial investigations that he or she considers necessary and take the relevant steps to consider the views of the other beneficiaries. The Magistrate or Master may even call the beneficiaries to make presentations concerning the application.
Protection from property grabbing
The law protects children’s inheritance rights by criminalising property grabbing. Property grabbing is where relatives loot the property of the deceased without any authority. Section 10 of the Deceased Persons Family Maintenance Act criminalises property grabbing. If someone tries to grab property, anyone witness should report it to the police. Convicted persons may be required to give back any property which has been unlawfully acquired.