My aunt died and left me her flat. She l...

Asked by PietBeneke on 06-08-2014 08:14:21
Question posted in the General Law category relating to Gauteng

My aunt died and left me her flat. She left the remainder of her estate to my brother.
I was appointed as the executor of her estate in her will and by the master of the court. I’ve appointed a attorney to assist me in this, and the will is in the process of being finalised.
In the mean time, I’ve found tenants for the flat and the rent is being paid into the deceased estate account.
My brother now assumes that he is entitled to the rent, as being the sole beneficiary of the estate, apart from the flat. (i.e. I suppose he reckons that everything to do with the estate apart from the actual flat belongs to him.)
I am disputing this – the flat was left to me, and the income it generates should belong to me, irrespective of when the estate is finally wrapped up. After all, the income generating part of the estate was left to me, and I would assume comes into effect at the moment of her death, not at the time when the estate has been finalised?
What is the legal position, and can you quote me the relevant clauses?

Message from the Lawyer

Posted by Att. Patrick on 06-08-2014 11:10:09
Hi there Piet and thank you for your question,

I don't think that you will like my answer, but I'm going to give it to you anyway because it is the law.

When a person dies, all of that person's assets (including the flat) will vest in the person's estate. The executor will be appointed in order to deal with the estate,  handle the estate, and wind up the estate in terms of the deceased's will.  All income the has previously been accruing to the deceased, will now accrue to the estate. All expenses that the deceased incurred on a monthly basis, will continue to be expenses against the estate.

If the flat is now accrusing rental income on a monthly basis, it is quite clear that the monthly rental income will fall into the estate.

It does not make a difference that the flat will ultimately belong to you, or for that matter that you found a tenant for the flat. The flat legally belongs to the estate, and the rental income therefore falls to the owner - which is the estate.

ONLY once the estate has been wound up, and the flat transferred into your name at the Deed's Office, will the rental accrue to you.

In this instance, your brother is correct. If the residue of the estate has been left to him, then the rental income will ultimately go to him as well. The rental income would however simply form part of the income of the estate. This income could be used to pay estate duty, or other expenses that the estate incurs.

I'm sorry that it is not the answer that you want.

What you can do however, and as you are the executor you can do this --- is to transfer the flat out of the estate and into your name as soon as possible. You'll need the master's permission to do so, but you should do this. Ask a firm of attorneys to assist with the conveyancing, and do it now. As soon as the flat belongs to you, you can claim the rental income.

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.

Att. Patrick

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Answer Accepted

This answer was accepted on 06-08-2014 11:51:02

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