What happens to your home when you pass away?

If you own your home, it important to know what will happen to it when you pass away, especially if you do not have a will.

It is also important to consider if you are married and if you are, is it in or out of community of property, the age of your children, do you still owe the bank money for your house and if your estate can carry the costs.

The importance of estate planning

This is quite a mouthful, but a bit of careful estate planning will help you to avoid pitfalls and ensure smooth transfer of the property to the intended new owner, making sure your wishes are carried out, says Carl Coetzee, joint MD of Capital Legacy.

“Home ownership can be a great way to secure your financial future and leave a valuable asset for your loved ones. However, not including your property in your will, or not doing so with thought and care, could leave your heirs out of pocket and even lose the place in some circumstances.

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What happens to your home when you pass away: Five questions to ask

Coetzee says there are five important questions to answer when you think about what happens to your home if you pass away:

1. Do you have a will?

If you own your home but do not have a will, this should be your first step.

“Having a basic will drafted is quicker, easier and simpler than you think. This matters because if you pass away without a will, your estate will be divided according to a formula set by law (intestate succession) and you will have no say in it.”

2. How are you married?

If you are married, your marital regime could affect your rights in terms of deciding what to do with your property.

Most commonly, there are two marriage regimes to consider in this context:

• If you are married in community of property, your spouse owns half of the property even if you leave it to someone else, like a child.
• If you are married out of community of property with accrual, remember that your spouse could have a claim against your estate for their share of the accrual.

“If this is a substantial claim, it might be necessary to sell the property. This could make matters more complicated to wrap up and could lead to unintended outcomes,” Coetzee warns.

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3. How old are your children?

In terms of South African law, children under the age of 18 (minors) cannot inherit directly without the assistance of their legal guardian.

Having a valid will that includes provision for a testamentary trust if your children are still minors, means the trustees would then be responsible for the property. This is widely considered a more desirable method of leaving property to children.

Coetzee says if there is no testamentary trust, your minor’s legal guardian would be responsible for the property.

If, for example, your ex is the guardian and you two were involved in an acrimonious divorce, this could easily lead to your wishes not being carried out, or your child’s best interests not topping the list of considerations.

“This is another reason for ensuring that your will makes provision for a testamentary trust.”

4. Is the property bonded?

Ideally, you want your property to be transferred to a new owner as an “unencumbered asset”, which means you owe nothing on it.

“If there is a home loan on your property, make sure you have sufficient cover to provide for your outstanding bond repayments, should you pass away. The executor of your estate will then use this cover to settle your total outstanding home loan amount before the property is transferred to your intended heir,” Coetzee explains.

If there is a home loan on the property and no cover in place, your heir could decide to take over the loan instead of letting the executor sell the property. However, this may take a bit of time as they would need to meet the bank’s qualifying criteria for a home loan.

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5. Can your estate cover the costs?

Sars does not require the payment of transfer duty when a property passes to a new owner by way of inheritance, but Coetzee warns that does not mean that there are no other costs involved.

“Your estate will still be liable for conveyancing costs, Deeds Office fees and municipal rates clearance certificates. If the property is part of a sectional title scheme, you will also need a levy clearance certificate, usually provided by the managing agents.

“An electrical certificate and an entomologist’s certificate (dealing with wood borer and termites) do not form part of a deceased estate property transfer.”

Without these required documents, the transfer will not be completed and therefore it is important to ensure that there are sufficient funds available in your estate to obtain the necessary certificates and avoid delays, Coetzee says.

What not to do

Coetzee says if you want to leave your home to your loved ones, remember:

• Do not use the address of the property in your will. You could, for example, simply refer to your “residential property” when your will is drafted. Then it would not matter whether you might have moved house and forgotten to update your will to reflect the new address. It will also avoid the collapse of the bequest of the property if the place is sold and your will not be updated accordingly.
• Do not neglect to discuss your plans and wishes with your loved ones. These conversations may be difficult, but they are important and should not be put off indefinitely. Sharing your wishes with those involved while you are still alive, could ease their burden at a time of grief and loss.

“Deciding what to do with your home matters on a number of levels: Financial, logistical and emotional,” Coetzee says.

“That is why you should think carefully about what you would like to do with it and make sure you update your will regularly to reflect your latest circumstances.”