Can my uncle claim my late father's assets if there is no will but my parents were married in community of property?

The long answer

For 1.) Yes, she will have to pay all the outstanding debts of the deceased estate, which will include the vehicle license disc and its arrears. All assets, income and debts of the deceased person are referred to as a deceased estate. 

As your mother and father were married in community of property, she will inherit the house they shared, but the person who is winding up the estate has to pay all the debts of the estate before any beneficiary can inherit. 

When a deceased estate is valued at less than R250,000, the Master of the High Court will give someone (usually a nominated family member) a Letter of Authority to wind up the estate, rather than appoint an Executor, which is done when the deceased estate is worth more than R250,000. The person who is nominated to be the representative receives the letter of authority in terms of Section 18(3) of the Administration of Estates Act. A letter of authority can only be obtained from the Master of the High Court when a person has died and the death has been reported. 

The letter of authority will give the nominated representative (which can be anyone you trust and can also be your mother) the right and duty to administer your father’s estate. That means paying all the debts and seeing that all the rightful heirs are identified to distribute the assets fairly and correctly. Having the letter of authority does not give the representative the right to enjoy the benefits of the estate personally.

The letter of authority (J170) must be obtained from the Office of the Master of the High Court or a Magistrates Court and can be issued the same day but can also take up to 120 days to be issued. It is usually valid for up to 12 months. The person who is nominated to be the representative receives the letter of authority in terms of Section 18(3) of the Administration of Estates Act. 

The following reporting documents are required (available online at www.justice.gov.za/master/forms.html):

• Completed death notice (form J294);

• Original or certified copy of the death certificate;

• Original or certified copy of a marriage certificate (if applicable);

• All original wills or documents intended as such (if any);

• Next-of-kin affidavit if the deceased did not leave a valid will (form J192);

• Completed inventory form (form J243);

• List of creditors of deceased (if applicable);

• Nominations by the heirs for the appointment of a Master’s representative in the case of an intestate estate or where no executor has been nominated in the will or the nominated executor declines the appointment;

• Undertaking and acceptance of Master’s directions (form J155);

• Declaration confirming that the estate has not already been reported to another Master’s Office or Magistrates Court.

When a person dies, their bank accounts are frozen to prevent theft and fraud. If the deceased was married in community of property, the joint estate is frozen. The representative must open a new bank account in the name of “Estate of Late Mr X” and the bank must transfer the money to that new bank account. The representative will need to provide the bank with the following documents:

• Death Certificate;

• Deceased’s ID;

• Letter of authority; 

• Appointed representative’s ID.

Often when someone dies, there isn’t enough cash to settle debts. In that case, the representative would have to see which assets could be sold to pay the debts. 

For 2.) As your father died without a will, he is said to have died intestate so the Intestate Succession Act of 1987 would apply. Under this Act, the order of inheritance is first spouses and then descendants, before other more distant relations like your uncle. But because the marriage was in community of property, it takes precedence over the Intestate Succession Act and your mother inherits the property anyway as the spouse. 

For 3.) Your relatives have no right to take her house and your father’s possessions. She should mention her fears in this regard to the Master when she reports the death and ask for legal advice on what to do if they should try to take her property.

She could also ask for advice from Legal Aid, which is a means-tested organisation. This means it assists people who cannot afford to pay a lawyer.

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

Wishing you the best,
Athalie