Know Your Rights

• First you need to know where to register the estate? 
• If the deceased was married under the Marriages Act Chapter 5:11, the estate has to be registered at the High Court 
• If the deceased was married under the Customary Marriages Act Chapter 5:07, or was in unregistered customary law union, the estate has to be registered at the Magistrates Court

How to register the deceased estate at Magistrate Court

Step by step process

• Be in possession of a death certificate
• Go to the deceased estate office at the Magistrates court to register the estate
• Fill in the required forms and list all the property of the deceased
• You will be informed of the date to attend a meeting before the magistrate to choose an executor 
• An executor is the person who is responsible for administering the estate and preparing a distribution list

Who can benefit from the estate?

• Surviving spouse(s) and children
• If there are no surviving spouse and children, the deceased’s parents, brothers and sisters will be the beneficiaries

Administration of an estate under general law

To whom does general law apply?

• Non Africans
• To people married under the marriages Act Chapter 5:11
• To people who are married under customary law but their way of living indicated a western lifestyle
• The Deceased Estates Succession Act is the applicable law to the administration of estates under general law 

How is the property shared under general law?

• The surviving spouse inherits the matrimonial home and all household goods
• The remaining property is divided between the children and the surviving spouse
• If there are no children or surviving spouse, parents, brothers and sisters of the deceased will be the beneficiaries

Administration of an estate under customary law

Which law applies?

Administration of Estates Amendment Act number 6 of 1997

To whom does the customary law apply?

• To people married under the Customary Marriages Act Chapter 5:07 
• To people staying together as husband and wife but without a registered marriage

N.B this law applies to estates of people who died after 1997. For those who died before 1994, the estate is administered the customary way and the eldest son inherits everything.

How is the estate distributed under Administration of Estates Act of 1997?

• If the deceased had one spouse, that spouse inherits the matrimonial home and all the household goods in it
• In addition to the house, the spouse is entitled to half of the remaining property
• The other half is shared among the children of the deceased

What if there is more than one surviving spouses?

• If a man dies and leaves more than one wife, each wife is entitled to the matrimonial home that they stayed in before the death of the husband and all the household goods in it
• All the wives are entitled to a 1/3 of the estate
• They have to share that 1/3 with the first wife getting a larger share 
• Of the 1/3, the first wives get 2/3 of the state
• The other wives have to share the remaining 1/3 
• The other 2/3 of the estate is given to children of the deceased

What is maintenance? 

Who can apply for maintenance?

• The mother on behalf or her children
• A spouse on his or her own behalf

Which court should you go to apply for maintenance?

• Maintenance can be applied for at the Magistrates Court 
• It can also be applied for at the High Court during the divorce process for those married under the marriages Act Chapter 5:11

How to claim maintenance at the Magistrates Court

• Go to the magistrate court 
• Collect the maintenance forms from the clerk of court
• fill the maintenance forms 
• Serve the forms to the person whom you are claiming maintenance from. 
• Serve the maintenance summons through the police or messenger of court 
• Attend the  court hearing

Important information to include in maintenance forms

• amount claimed- be clear and specify the expenses you incur or likely to incur in future 
• names and dates of birth of the children
• income of the person whom you are claiming maintenance from

How is maintenance paid? 

• It is deposited in a bank account
• It can be deducted from the respondent’s salary

N.B a court application for a garnishee order has to be made before the Magistrate in order for the money to be deducted from the Respondent’s salary 

What if the person defaults paying maintenance

• You can apply for a garnishee order. A garnishee order is a court order which allows for money to be deducted from respondent’s salary from his or her workplace
• Maintenance Variation
• If there are changed circumstances you can go back to the court and ask the court to increase the amount that you are getting every month.
• The respondent can also apply for a court order to vary the maintenance downwards if he/she is no longer employed

What is a protection order? 

This is a court order which forbids a person accused of committing domestic violence not to continue abusing the applicant

Who can apply for a protection order?

• Victims of domestic violence
• Any person with the consent of the victim can apply for a protection order
• Any person can apply for a protection order on behalf of someone without consent if there is permission from the court
• Anyone  who is looking after a person under the age of 18 can apply for maintenance on behalf of that person

What to do to get a protection order

• Fill in the forms  with the assistance of the clerk of court
• The application is placed before the magistrate within forty eight hours 
• The court can grant an interim order that protects the victim while waiting for  the court date 
• If granted the interim order is served to the perpetrator through the police 
• A court hearing is conducted and both oral and written evidence is brought before the magistrate
• Is satisfied that the protection is necessary, a protection order is granted

For how long is a protection order valid?

• 5 years but you can go and make another application for a protection order  after that period if you are still facing abuse

What to do if the abuser does not comply with a court order

• Failure to comply with the court order amounts to contempt of court 
• Report to the nearest police station