Jail for failure to register deceased estates

Family members who fail to register the estate of a deceased relative within 14 days of death can be charged under the Administration of Estates Act with an offence that attracts a penalty of fines or a jail term of up to 12 months.

Most Zimbabweans just move on with their lives after the death of their parents or other relatives and continue using movable and immovable property forming part of a deceased estate without registering it.

Some do it out of ignorance, while others do so deliberately to avoid paying fees associated with the process.

Others just decide to continue using the assets for fear of property fights that may erupt during the distribution of the deceased's estate.

However, in terms of Section 5(3a) of the Administration of Estates Act, failure to register an estate within the stipulated 14-day period is a criminal offence attracting a jail term of up to one year or a fine not exceeding Level Six of the fines schedule.

In some cases, the convicted relatives may be slapped with both a prison term or a fine depending with the circumstances.

The relevant law reads:

(1) Whenever any person dies leaving any property in possession, reversion or expectancy or leaving a will, the nearest relative or connection of the deceased who is at or near the place of death, or in default of any such near relative or connection, the person who at or immediately after the death has the chief charge of the house in or of the place on which the death occurs shall, within fourteen days thereafter, cause a notice of death to be framed in the form A in the Second Schedule, and shall cause that notice, signed by himself, to be delivered or transmitted…..

(3a) Any person who, without just cause, fails to comply with subsections (1) to (3) shall be guilty of an offence and liable to a fine not exceeding level one or to imprisonment for a period not exceeding one month or to both such fine and such imprisonment.

The conduct was criminalised through an amendment to the Administration of Estates Act of 2001.

Prior to that, people would just go for years without registering. They would only think of registration when they wanted to use the properties as collateral or when they think of selling it.

In the process, the Government which is entitled to a share in all the transactions through death duties, when the estate exceeds in value various minimums, and the Master's fees, will be prejudiced of revenue.

When an estate is administered through the Master, there are taxes that will be paid.

There is Master's fees at 4 percent of the gross value of the estate, and there is estate duty at 5 percent of the dutiable value of the estate. The estate duty can be lower and in some circumstances will be zero, but the Master's fees are never waived.

If the estate is not registered, and people just share the assets, the State will lose the taxes.

However, there are other forms of assets which families cannot just share. They eventually have to register the estate to be able to share them. Such assets as houses and other immovable property which require conveyancing to change ownership will force people to register estates.

In such cases, the prejudice to the State is only in the form of delayed revenue. For estate duty, the law imposes interest on delayed payments, which thus reduces the loss of value to the State. But for Master's fees, there's no interest penalty, so the delay actually costs value.

Legal experts spoke on the relevance of the law with some saying most people were not aware that failure to register an estate is criminal.

Harare lawyer Mr Caleb Mucheche, who is involved in a number of inheritance cases as an executor, said people were not aware of the law hence there was need for awareness campaigns.

Ignorance may be one of the major causes for that inaction but such legal provisions are there and there is need for public awareness to such period for registration of an estate as stipulated by law.

However, enforcement of the law is difficult because that law may be seen as persecuting the bereaved by criminal prosecution and yet they deserve sympathy, he said.

Former deputy Master of High Court, Mr Reuben Mukavhi, who is now in private practice, said the class of persons who should register the estate in terms of the law was too wide, making enforcement a bit difficult.

"Indeed, within 14 days of the death of a person who has left any property behind, a notice must be filed with the Master. And indeed, it is a criminal offence to fail to do so. The problem with the criminal enforcement of the provision is that it would affect every nearest relative or connection and anyone staying at the place where the death occurred (like your nurses and doctors, where the death occurred at a hospital).

"I don't think this is feasible. One might argue that the class of persons required to file the death notice is too wide to be used in the context of the criminal law. That's why we have not seen many people being arrested under section 5 (3a) of the Act," said Mr Mukavhi.

Another lawyer Mrs Tambudzai Gonese-Manjonjo said:

"I don't see the need to criminalise administrative acts that could be dealt with outside the criminal justice system. In addition,these kind of offences tend to affect people who lack resources, including knowledge of law and procedures, thus criminalising the poor," she said.

Two years ago, First Lady Auxillia Mnangagwa went on a nationwide tour raising awareness on inheritance laws in the company of the Master of High Court Mr Eldard Mutasa.

They covered all provinces educating the masses on inheritance laws.

The First Lady led a team of administrative and legal experts who shared the country's laws on will writing, execution of deceased's estate and inheritance.