TSC Case Study 5: Winding up an estate

The Transaction Support Centre (TSC) has been operational since July 2018 and since then has seen over 160 clients with various housing-related issues. The most common issue relates to problems with title deeds which typically arise from informal cash sales, primary transfer issues and deceased estates – the latter being the topic of this case study.

Winding up a deceased estate is a difficult process for any household but it can be particularly stressful for low-income households who are unable to afford the legal costs involved. Fortunately, in line with existing regulations, low-value estates that fall below a specified threshold can be administered via a more rapid and affordable process. However, because of rising property prices, many low-income households who stand to inherit subsidy houses may no longer be eligible for this process. This case study describes the experience of an unemployed client who has to wind up an estate where the value exceeds the current threshold.

Deceased estates in South Africa

Legislation pertaining to the administration of deceased estates in South Africa is contained in the Administration of Estates Act 66 of 1965 (‘Act’). Section 18(3) of that act states that where the value of the estate falls below a threshold determined by the Minister of Justice from time to time, the Master of the High Court can appoint a person or persons, known as the Master’s Representative, to administer the estate without having to follow the full procedure as set out in the Act. That threshold was set at R250 000 in 2014, when the Minister issued a Directive which increased it from the previous amount of R125 000[1]. In practice this means that qualifying estates (also known as “small estates”[2]), do not need to appoint an executor, typically a qualified attorney, to formally wind up the estate by means of a Liquidation and Distribution Account. Instead, the “small estate” can be administered in line with the directives of the nominated Master’s Representative. This translates into significant savings in terms of time and legal fees for beneficiaries as outlined in Figure 1 and Table 1 below.

Figure 1: Simplified illustration of deceased estate process

Table 1: Key differences in deceased estate processes

Many of the deceased estate cases at the Transaction Support Centre fall below the threshold and are considered “small estates”. They can be administered in line with the simple and cost effective S18(3) deceased estate process. However, as demonstrated in this case study, some clients do not qualify as the current value of their Government subsidised houses exceeds the R250 000 threshold. This has significant and immediate implications for heirs.

Our client

Nomsa is 40 years old and currently unemployed. She approached the TSC for assistance with transferring her deceased grandmother’s property into her name. Her grandmother received a Government subsidised house in Khayelitsha in 1997 where she lived until her death in 2018. Her grandmother did not have a will, and in line with the rules of intestate succession, ownership of the property would pass to Nomsa’s mother, the sole heir of the deceased estate. However, Nomsa’s mother lives in the Eastern Cape and would like Nomsa, who lives in the property in Khayelitsha, to take title of the property. She has therefore renounced her rights to the estate.

According to the City of Cape Town’s 2018 valuation roll, the 160 m² property is currently valued at R363 000, a 6,8% increase from the 2015 valuation of R340 000. While the property is a valuable asset and source of wealth for our client, its high value creates two immediate problems for her. The first is that the estate cannot be dealt with in terms of the s18 (3) process as described above. Nomsa therefore needs the assistance of a legal professional to wind up the estate. The second problem is that Nomsa has no access to subsidised legal assistance. While Nomsa’s low income makes her eligible for Legal Aid, according to the consultant we spoke to, Legal Aid will only take on an estate transfer where the heir is a minor, and even then, Legal Aid will refer the conveyancing component of the estate on to Pro Bono. While Pro Bono does provide access to free conveyancing services to lower income households (excluding disbursements), this only applies where properties are valued at below R300 000 in Cape Town.[4]Nomsa therefore needs to fund over R20 000 in legal fees – R11 500 for an attorney to wind up her grandmother’s estate and approximately R11 000 in conveyancing fees to transfer the property into her name (see Table 2 for a breakdown of the costs)[5].

Table 2: Approximate legal costs to wind up estate and transfer property into client’s name

While Nomsa will be ‘asset-rich’ when she takes transfer of the property, she is currently ‘income-poor’, which means she cannot afford the legal costs to make the transfer happen. The value of the property precludes Nomsa from accessing the benefits of the S18(3) provision as well as subsidised legal assistance through Legal Aid and Pro Bono. Ironically both institutions exist to assist people just like Nomsa who would like to transact through formal mechanisms but do not have the financial means to do so.

This case study highlights the story of one client, but we do not think Nomsa’s situation is unique. Government’s subsidised housing programme has transferred a potentially valuable housing asset to over 1.8 million poor households[7]. As more subsidy (or RDP) properties transact on the resale market and as banks and other lenders increase the provision of mortgage finance in more affordable segments of the market, prices of RDP houses are likely to rise, particularly in urban centres like Cape Town. The value of housing assets owned by subsidy beneficiary households is likely to exceed the “small estate” threshold and the threshold for subsidised legal services even though their incomes, and ability to afford such services, may remain unchanged. While heirs who wish to sell inherited properties can use the proceeds of a sale to fund legal fees, those who wish to retain the asset may not be able to formalise ownership.

Clearly there is a need to rethink “small estates” in South Africa and how thresholds are determined for access to subsidised legal services. At a minimum, if qualifying thresholds are based on estate values, then these amounts need to consider property price inflation and property market performance. As noted, the “small estates” threshold was last updated in 2014 from R125 000 to its current value of R250 000. Had the threshold been updated annually in line with national house price inflation, it would currently be around R312 000. If the threshold was aligned with provincial property price inflation, the quantum for the Western Cape would be around R356 000[8].

Nomsa’s case clearly demonstrates that an asset value threshold can result in income-poor households being unable to access legal services necessary to realise their inheritance. Clearly, household income should also be a factor when determining qualifying criteria.

This issue requires the urgent attention of the Department of Justice and the legal industry at large. If not resolved, more deceased estates are likely to remain unresolved, reducing the reach of formal property market mechanisms and neutralising the potential value of housing assets; banks and other lenders cannot lend against the asset and prices will not increase beyond a price affordable to cash buyers. Beyond this, the impact on heirs is significant. They must either find a way to pay for legal services they cannot afford or forego formal registration of inherited property.

[1]http://www.justice.gov.za/master/m_docs/2015-03_chm-directive.pdf

[2]http://scholar.ufs.ac.za:8080/xmlui/bitstream/handle/11660/3831/juridic_v41_n1_a1.pdf?sequence=3&isAllowed=y

[3]The full documentation requirements can be obtained here: http://www.justice.gov.za/master/m_deseased/deceased_how.html

[4]Telephonic conversation Uzair Adams, Director & Attorney, ProBono.Org

[5]The Transaction Support Centre has negotiated a discounted fee and a payment plan with a local attorney to wind up the estate,  and may also be able to negotiate discounted conveyancing fees.

[6]The fees have been calculated on the City of Cape Town 2015 valuation (R340 000). Pre-discount the fees would be R11 500. Attorney’s are entitled to charge up to 3.5% of the gross value of the estate http://www.justice.gov.za/master/faq.html#6

[7]This is according to CAHF’s research. There is no official published data on the number of subsidy properties that have been formally registered

[8]Calculated according to Lightstone’s national and provincial property price inflation figures as at the end of February 2014 to 2019