Can I claim from an intestate estate if I am not the next of kin but the owner said everything should go to me?
The short answer
Unfortunately, if the deceased has living siblings, you will not inherit.
The whole question
My girlfriend, our child and I have been evicted from my late aunt’s house by her younger sister who claims that the house belongs to her and her remaining siblings. But my aunt told us that when she passed everything she owned must go to me. Unfortunately, she did not write a will. Is there any way that I can claim her estate? She nominated us in her provident fund.
The long answer
In terms of being nominated as a beneficiary of her provident fund: this certainly shows that she cared about you, your child and girlfriend, but it doesn’t count in terms of inheriting her house.
As she died without making a will, which is known as dying intestate, the Intestate Succession Act will apply. Under this act, blood relatives of the deceased will inherit in the following order of preference:
The spouse of the deceased;
The descendants of the deceased;
The parents of the deceased (Only if the deceased died without surviving spouse or descendants);
The siblings of the deceased (Only if one or both parents are predeceased).
When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares. When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but each wife should inherit at least R250,000. When the estate is not large enough to allow each wife to inherit R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.
So, as your late aunt’s younger sister is fourth in line to inherit, along with her siblings, you as her nephew, will not inherit.
However, in terms of being kicked out of your home: the Prevention of Illegal Eviction and Occupation of Land Act 19 of 1998 (known as the PIE Act) says that no one in South Africa can be evicted without a court order.
If your aunt’s younger sister wanted to evict you from the house, she would have to go to court first to get an order. She would also have to give you written notice of the date of the court hearing, so that you could be present and give your side of the story. The court would only agree to an eviction order if it was convinced that the eviction was fair and justified. The municipality would be required to attend the court hearing too, in order to indicate if they had emergency housing that they could offer you if you were evicted.
It may be best to seek legal advice from Legal Aid, which is a means-tested organisation that must provide free legal advice to people who cannot afford a lawyer.
These are their contact details:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
You could also ask The Black Sash, which is an organisation that gives free paralegal advice.
Here are their contact details:
For free paralegal advice:
Helpline: 072 66 33 739
Wishing you the best,
Answered on Sept. 19, 2022, 4:36 p.m.
Original Article: https://www.groundup.org.za/qanda/622/