Distribution of deceased’s estate often causes anxiety
powerless when disputes within a family arise.
The law prefers the deceased’s spouse as a custodian of the estate’s property pending the appointment of an executor.
An executor is a person appointed to carry out the obligation of the deceased. Upon the death of the deceased, the Master of High Court will call upon the surviving spouse, if the person was married and five relatives of the deceased to an edict meeting where they can choose an executor. If they fail to do so then the Master of the High Court may appoint someone to be an executor.
The executor has to list the property of the deceased in an inventory, publish the estate in the Government Gazette and newspaper circulating in the district where the deceased resided at the time of his death to inform debtors and creditors so as to enable him to pay creditors and collect debts for the estate. The executor will then prepare an account, which shows what the deceased had and what he owed to creditors and distributes the estate property to the beneficiaries.
If the beneficiaries are not satisfied with the way the executor is performing his duties they can lodge a complaint with the Master of High Court who has the authority to remove him. “If the wives were living in different houses owned by the deceased person at the time of his death, then they each get ownership of the house and all household goods in the house in which they lived. If they all lived in one house and if it is impossible to get ownership then they will retain the right to use the house,” said Ms Nomsa Ncube, a lawyer.
She said in cases where the deceased is survived by one wife and one or more children, the surviving spouse should get ownership of or, if that is impracticable, a usufruct over the house in which the spouse lived at the time of the deceased person’s death together with all household goods.
The children should each get an equal share from the remainder of the net of the estate, said Ms Ncube.
“If the deceased person is a woman who is survived by a husband with more than one wife and she had one or more children, the husband is entitled to a third of the net estate and the remainder goes to the children in equal shares. Where the deceased person is not survived by a spouse but by a child or children, then the net estate should devolve upon that child or those children in equal shares,” she said.
All legitimate children of the deceased should get an equal share each from the residue of the estate after the spouse has been given her entitlements.
Customary law marriages, whether registered or unregistered, are valid for the purpose of inheritance except if a person contracts a registered or unregistered customary law marriage when he is already married to someone else under the Marriage Act [Chapter 5:11] the customary marriage will not be valid.
If a woman marries under the Marriage Act [Chapter 5:11] a man who is already married under customary law to someone else, then the last marriage will be treated as a customary law marriage for purposes of inheritance.