Can a minor inherit immovable property?

South African law makes provision for a minor child to own an inherited property with the assistance of their legal guardian.

July 22, 2016

In the eyes of the South African law, a minor child (under the age of 18) may not enter into contracts without the express or implied consent of their legal guardian. A legal guardian may be the natural guardian (i.e. a parent of the minor child) or an appointed guardian (an individual specified in a will or appointed by the courts).

By extension of this restriction of contractual ability, a minor child is also not eligible to purchase immovable property without such consent.

In situations where a minor child inherits immovable property through a will of a deceased estate or in terms of the Intestate Successions Act, South African law makes provision and acknowledges that the minor child may own the inherited property and therefore take transfer with the assistance of their legal guardian.

What this means is that although the minor child is the owner of the immovable property, the legal guardian is responsible for administering the property until the child reaches the age of majority and is considered fit to manage his or her own affairs. Should the minor child wish to sell or mortgage the property before turning 18, he or she would need the assistance of the legal guardian in order to do so.

A popular alternative to this would be to create a testamentary (mortis causa) trust, in which case the property will vest in this trust until such time as the minor obtains majority or until the age, as mentioned in the trust, is attained. The title deed will be endorsed to this effect and formal transfer will take place once the stipulated age is reached.

However, to protect the minor’s future estate, restrictions are put in place regarding what actions the legal guardian is allowed to take in the administration of the minor’s property. For example, the guardian may not sell or dispose of the property without the consent of the Master of the High Court. In order to do so, the guardian will have to apply to the Master of the High Court who will assess the request and determine whether or not to approve it with a view to ensuring the best interests of the minor child are considered and protected.

Written by Wessel de Kock

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