The death of a loved one brings about an extremely difficult time for the close family and friends of the deceased as aside from grieving, the stress of winding up the estate brings added burden.
When a person dies, an executor is appointed by the Master of the High Court, and this executor is the only person who is legally authorized to administer the affairs of the deceased estate.
The executor may act on behalf of the deceased estate in the sense that he/she may enter into agreements for the sale of the immovable property of the deceased.
When it comes to the transfer of property to an heir or heirs of the estate, the executor must pass transfer of the property as directed by the will of the deceased, or if there is no will, according to the rules of intestate succession.
There is no transfer duty payable in a transfer to heirs of the estate, however, the estate will be liable for all the conveyancing costs involved.
The transfer cannot proceed without the Liquidation & Distribution Account first lying for inspection without objection. The conveyancing attorney attending to the transfer must certify in terms of Section 42(1) of the Administration of Estates Act that the transfer is in accordance with the Liquidation & Distribution Account.
The other instance which commonly occurs is that of a sale from the deceased estate. This in itself brings about 2 possible scenarios:
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Sale by the deceased Prior to death
This occurs where the deceased had signed a deed of sale for his immovable property prior to his demise, but the transfer of that property has not yet been registered.
In this instance, the transfer process will be halted until such time that an executor is appointed.
The executor then takes the place of the deceased and acts as the seller of the property.
It is important to note that if the deceased had signed a Power of Attorney to pass transfer, this automatically falls away and a new Power of Attorney must be signed by the executor.
The conveyancer attending to such transfer must obtain a certificate from the Master of the High Court which certifies that the Master has no objection to such transfer taking place. [Section 42(2) of the Administration of Estates Act]. The heirs do not have to consent to the sale.
The Purchaser will be liable to pay the conveyancing costs and depending on the value of the property, transfer duty will be payable to SARS in this instance.
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Sale by the executor of a deceased estate
The executor may sell a property which forms part of a deceased estate if this is beneficial to the estate or if the heirs of such estate wish to sell the property.
In this instance, the executor will sign the sale agreement as well as all the transfer documents in his capacity as the executor of the estate.
As in the previous instance, the conveyancer attending to the transfer will need to obtain the Certificate in terms of section 42(2) of the Administration of Estates Act from the Master of the High Court. Here all heirs must consent to the sale.
The purchaser will be liable for the conveyancing costs.
Clearly the process of transferring immovable property after the death of a loved one is not a simple process, so please do not hesitate to contact the PGPS team should you find yourself in this position.
Contributor: Derone Sookraj
Designation: Associate
Department: Conveyancing
Email: Derone@pgpslaw.co.za
For more information please contact one of our attorneys!
