“And Naboth said to Ahab, The Lord forbid it me, that I should give the inheritance of my fathers unto thee.”
This quote from the Bible, 1 Kings 21:3, demonstrates that people are eager to know and protect their inheritance. The wealth accumulated and passed from generation to generation is jealously guarded by those who are alive and entitled to it. Do all know and claim their inheritance rights? The answer is surely on the negative. Some people depend on the benevolence of estate distributors to access what is due to them and often forfeit the actual value of their inheritance. This ignorance in the worst-case scenario, results in family fights and disputes over the deceased estate.
Inheritance is defined as “the practice of passing on property, titles, debts, rights and obligations upon death of an individual.” This transfer requires the deceased estate to be administered. The administration of an estate simply means the estate must be registered and then distributed to beneficiaries.
To begin with, it is important to know where to register the estate in Zimbabwe. If the deceased was married under the Marriages Act Chapter 5:11 (civil marriage), the estate must be registered at the High Court. If the deceased was married under the Customary Marriages Act Chapter 5:07 (customary law marriage), or was in unregistered customary law union, the estate must be registered at the Magistrates Court. If a person is a single African and his or her parents have a registered customary marriage or live under an unregistered customary law union, the estate should be registered at the Magistrates Court. In a mixed marriage where a woman is in a civil marriage with a man who is already married under customary law to someone else, the last marriage will be treated as a customary law marriage for purposes of inheritance. When a deceased person leaves behind a will, the estate is registered at the High Court.
To register an estate, one should be in possession of a death certificate and/or marriage certificate, fill the required forms (death notice form and preliminary inventory form), and list all the property of the deceased. Following the initiate appearance to register the estate, the Court will then inform the applicant of the date to attend a meeting before the magistrate or Master of the High Court (Master) to choose an executor.
The family of the deceased normally nominates someone such as a family member or a close relative to be the executor. The appointment happens in an edict meeting before the Court that should be attended by at least four close relatives of the deceased. If there is a will, a person nominated in the will shall be appointed. If there is a contestation on who should be the executor, the Master will appoint a neutral executor. The executor will be issued with Letters of Administration authorising him or her to wind up the estate.
The executor must register the estate within 14 days after the passing on of the deceased. The registration is done by way of completion of a death notice form, which is obtained at the Master’s Office or Magistrates Court that administers deceased estates. It a criminal offence for one to fail to register an estate within the stipulated time. Further, it is illegal to conceal estate assets, sell estate property if not formally appointed as an executor, sell or distribute estate property as an executor without authorisation by the Master, and misappropriate estate funds or properties.
Master’s offices are found in Harare, Bulawayo, Masvingo, Mutare and Chitungwiza.
The executor is tasked with listing the property of the deceased in an inventory, advising debtors and creditors on the intention to distribute the estate through publishing it in the Government Gazette and newspaper circulating in the district where the deceased resided at the time of death, and preparing an account of what is owed and what remains after paying creditors.
The executor must carry out his or her tasks in consultation and agreement with the family of the deceased and intended beneficiaries. Once an inheritance plan is ready, it must be submitted to the Master or magistrate. The Master or magistrate approves the plan if satisfied that the inheritance plan has been drawn in terms of the law. Thereafter, the executor can distribute the estate in accordance with the plan. If dissatisfied that the interests or consent of the family and beneficiaries were given adequate consideration, the Master or magistrate shall insist on compliance with the requirements of the law before an approval is granted.
Pending the finalisation of the estate, there is the issue of interim custody of the estate. There is a preference towards the spouse of the deceased as the custodian. The law gives the family of the deceased, namely wife or husband and children the right of continual use of immovable property household goods, vehicles, animals and agricultural produce which belonged to the deceased.
Whether there is a will or not, the deceased estate should be administered. The succession of the deceased estate works better if there is a will that contains what the deceased intended for the distribution of his or her estate. However, in the African society, some are still hesitant to draft wills as they see such a step as an invitation of death. If a person dies without leaving a will, the person is said to have died intestate.
The upcoming articles will look in detail on who can benefit from a deceased estate, how property should be shared among the beneficiaries, and the importance and contents of a will.