Cluver Markotter

Family rights to immovable property after death of the owner By Sisteen Geyser

Wills should have clear provisions on the rights of family members to immovable property after the owner dies.

One way (the simplest) is to direct in the will that the property be sold and the proceeds divided among the children. This will avoid any joint ownership that could lead to disagreements among the children.

However, if it is a farming property or the basis of some other ongoing family business, sale may not be an option and provision must be made for transfer of the property to a business entity like a company or trust, with added provision for management of the business and for shareholding in the business entity.

If it is a residential property, such as a town or beach house, leaving the property to all or some of the children will create joint ownership, with the potential for disagreements among the joint owners. (The Roman law maxim, communio est mater rixarum – joint ownership is the mother of disputes, should be borne in mind.) Also, for residential property it is probably best to provide for transfer of the property to an entity like a company or trust, with added provision for management of the property and sharing of use and costs.

Combining ownership for some and other rights to the property for others, such as rights of use of the property, is but another form of sharing rights, with the potential for disputes about management and costs of upkeep, like costs of repair and insurance.

Probably the worst option is for the Testator to bequeath the property to one or more of the children and simply expressing a wish in the will that the other children will be allowed to share in the use and enjoyment of the property. This is too vague and is almost certain to create disputes.

The utmost care should be taken when drafting clauses in a will dealing with immovable property.

Please contact our Trust and Estates Department for assistance in this regard.

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