WHEN a person passes on leaving behind property, the process of inheritance depends on several key factors. One must establish whether the deceased was unmarried or married and if married, the type of marriage applies; in community of property, out of community of property or according to Eswatini Law and Custom. Another important factor is whether the deceased left a Last Will and Testament (Testate) or passed away without one (Intestate).
If a person dies testate, property distribution is guided strictly by the Will. This article focuses on Intestate inheritance (ab intestato); when no will is left behind.
Marriage situations and intestate inheritance
1. Married in community of property
In community of property marriages, spouses form a single joint estate and both co-own every item within it. Upon the death of one spouse, the entire estate must be reported to the Regional Master of the High Court; including any property, regardless of whose name appears on the Title Deed.
Inheritance distribution
The surviving spouse is entitled to half of the property (by virtue of community of property) plus a child’s share.
The surviving children inherit the remaining balance, divided equally.
Example:
• Couple married in community of property.
• Husband owns Lot 1, valued at E1 million.
Wife dies, survived by two children.
Distribution:
• Husband will be entitled to 4/6 undivided share in Lot 1 (3/6 from his half share + 1/6 child’s share).
• Child 1 will be entitled to 1/6 undivided share in Lot 1.
• Child 2 will be entitled to 1/6 undivided share in Lot 1.
2. Married out of community of property and Eswatini Law and Custom
In these marriages, spouses do not share a joint estate. Should one spouse die intestate, the property is distributed in line with the Intestate Succession Act, 1953. This law entitles both the spouse and the children to a child’s share in the property.
Example:
• Couple married out of community of property /Eswatini Law and Custom.
• Husband owns Lot 1, valued at E1 million.
• husband dies, survived by two children.
Distribution:
• Wife will be entitled to 1/3 undi¬vided share in Lot 1.
• Child 1 will be entitled to 1/3 undivided share in Lot 1.
• Child 2 will be entitled to 1/3 undivided share in Lot 1.
• Redistribution option
• Heirs may enter into a redistribution agreement, which allows them to:
• Relinquish their undivided shares,
• Reallocate multiple properties, or
• Sell the property and share proceeds accordingly.
Documentation required
To process the transfer of inherited property, both the transfer (estate) and the transferees (heirs) must provide key documentation.
Transferor (Estate):
1. Original Title Deed
2. Deceased’s ID
3. Deceased’s marriage certificate
4. Master’s letters of administration
5. Master’s death notice
6. Master’s liquidation and distribution account
7. Master’s inventory
8. Master’s consent
9. Property valuation report
10. Rates clearance and dues for the property
11. Tax compliance certificate
12. Marriage Certificate (if married)
Transferee (Heirs):
1. ID copy
2. Birth certificate
Fees involved
Estate transfers attract fees calculated based on the value of the property. Common charges include:
• Stamp duty
• Conveyancing fee
• Deeds Office fee
Understanding the type of marriage, whether the deceased left a Will and following proper legal procedures is crucial when inheriting property. With the right documentation and guidance, heirs can ensure smooth transfer of ownership and avoid future disputes.
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