Namibia: Inheritance

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Inheritance tax and law

The Global Property Guide looks at inheritance from two angles: taxation, and what inheritance laws apply to foreigners leaving property in Namibia: what restrictions there are and whether making a will is advisable.

INHERITANCE TAX

How high is income tax on residents in Namibia?

There are no inheritance taxes in Namibia.

INHERITANCE LAW

Thanks to Ellis & Partners

What inheritance laws apply in Namibia?

Namibian laws regulate the inheritance of property in Namibia.

The applicable laws are:

• The Administration of Estates Act No. 66/1965;
• The Wills Act No. 7/1953;
• The Intestate Succession Ordinance No. 12/1944;
• Schedule 2 only of the Administration of Estates (Rehoboth Gebiet) Proclamation No. 36/1941.

The laws regulating succession and inheritance of fixed property are the same for foreigners and Namibian nationals. The general principal of lex rei sitae applies, i.e. the laws of Namibia apply to all property situated within its boundaries. Foreigners require the consent of the Government of Namibia to acquire agricultural land; however inheritances are generally exempt from this provision.

The Master of the High Court governs the administration of the estates of deceased persons in Namibia, and the provisions of the Administration of Estates Act are rigidly applied. The Master will only appoint an Executor if assisted by a person duly acquainted with the administration of estates, which is usually a lawyer. Executors must be aware of the powers of the Master, and maintain a high standard of administration. Aggrieved persons may refer their grievances to the Master, who adjudicates thereon.

Testate succession is fairly simple.

The assets of the deceased are dealt with by the appointed Executor according to the provisions of the will and Namibian succession laws. All executors are obliged to submit to the Master of the High Court, within six months from the date of his/her appointment, a Liquidation and Distribution Account, which sets out how the assets and liabilities of the deceased have been dealt with. This time period can, for good cause, be extended by the Master. If the Master is satisfied with the executor’s administration of the Estate, then he/she receives a percentage of the gross value of the assets, which is currently fixed at 3.5%.

It is advisable to make a will to dispose of assets in Namibia.

The will of a foreigner can be made in, or outside Namibia. A will leaves no doubt as to how the assets of the deceased should devolve upon the heirs; whereas the results of intestate succession may not be intended.

The Administration of Estates Act and the Wills Act prescribe the formalities of making a will, which, if not strictly complied with, may render the will invalid. A will made in Namibia must be signed on every page by the testator and two witnesses, in the presence of each other. The presence of a lawyer is not a prerequisite, but is advisable. A will made outside Namibia can only be accepted as valid in Namibia if the formalities prescribed in the country where it was made have been complied with.

There is no reserved portion.

Namibian inheritance laws place no restriction on the disposition of assets in a will. The testator can freely dispose of assets to anyone; however the estate is liable for the obligations of the deceased, which must be paid before the assets are distributed.

The validity of a will can only be challenged on the grounds that the testator was of unsound mind, or that the legal formalities referred to above were not complied with. Financial suffering or dependency is not recognized as sufficient to challenge a will; however, after the will is implemented, any person who is financially dependent on the deceased can submit a claim to the Executor, who may admit or reject the claim, subject to a final decision by the Master of the High Court.

In the absence of a will, the laws of Intestate Succession are applied.

The Master of the High Court, in conjunction with the heirs, appoints an Executor Dative to administer the intestate assets of the deceased.

No reserved porton exists as such, but the Intestate Succession law stipulates how the assets of the deceased are to be distributed to specific relatives. To this extent, the law may be construed to include a reserved portion, as follows:

• If the deceased spouse leaves no descendants, then the surviving spouse is the sole intestate heir.
• If the deceased spouse leaves any descendants (legitimate or illegitimate children) entitled to succeed ab intestato, then the surviving spouse inherits the same share as the children, but not exceeding N$50,000 in value (whichever is the greater);
• If the deceased spouse leaves no descendants entitled to succeed ab intestato, but leaves parents or siblings (full or half blood), who are entitled to succeed, then the surviving spouse inherits a half share, but not exceeding N$50,000 in value (whichever is the greater);

Property may be donated during the lifetime of the owner.

Any donation which results in the liabilities of the donor exceeding his/her assets, may be set aside by a Court of Law, on application by any person affected by such donation. Donations between spouses during the subsistence of a marriage, can also be set aside, even if the donation does not have the effect referred to above.

Ownership of property is determined from Title Deeds.

It is the duty of the Executor to perform searches to determine the legal ownership of property in the deceased’s estate. The owner of immovable property named in the Title Deeds is regarded as the legal owner. Any person who disputes the ownership of property by another, must approach a Court of Law to issue a Declaratory Order as to ownership.

Registration of Title Deeds normally takes between 7 and 14 days, provided that the documentation is passed as correct by the Examiners. Complicated transactions may take longer, but rarely more than 30 days. The presence of the transferee or property purchaser is not required when a transfer is registered. The Title Deed is delivered first to the legal representative, who in turn forwards it to the transferee. Foreigners who acquire property in Namibia are therefore recommended to retain a Namibian lawyer specializing in conveyancing of immovable property who can oversee the transaction and ensure compliance with the complicated procedures.

Immovable property can also be registered in the name of a Company, provided that the Company is locally registered, or locally registered as a foreign Company.

Minors can acquire property.

Minors (persons under the age of 21 years) can, in their own names, acquire ownership of movable, as well as immovable property in Namibia; however, minors may not alienate any property without the assistance of a legal guardian, or by Consent of the High Court of Namibia.

Namibia - more data and information

• How high is income tax on residents in Namibia?

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posted by Marianne Muller | 2008-01-24

Housewife, Brisbane

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