When the Property Transfer is from a Deceased Estate – Things to Note | Legal Articles

 

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When the Property Transfer is from a Deceased Estate – Things to Note

It is not all property transfer and/or sale transactions where both the owner and purchaser are present to conclude the transaction.

It happens most often that some properties are transferred and sold from a deceased estate, with the purchaser having to transact with the heir or the executor of the deceased estate.

In other instances, there is no sale involved, but that the property must be transferred from the deceased estate to the heir who is entitled to inherit such property.

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The Process of Transferring a Deceased Estate

This article will discuss the important notes with regards to the requirements that must be followed in property transfer processes, so that they comply with the law.

In the first instance where the property is to be transferred to the heir from the deceased estate, the Executor gathers all assets and liabilities for distribution to nominated and identified heirs.

Towards the end of the process the Executor is required to submit a Liquidation and Distribution account to the Master of the High Court whose office issued the letter of Executorship, as a report of how the deceased estate was administered.

Transfer of the property to the heir may not happen until the Master has approved the Liquidation and Distribution account, the account having been available for inspection without any dispute for the duration of the prescribed time, and the Master having given the green light for the transfer to be effected. Any transfer before these three phenomena happen is invalid and unlawful.

Transfer Property from Deceased Estate to Beneficiary

Secondly, in the instance that the heir who is entitled to inherit the property wishes to sell the property to a third party before transfer to that heir has been effected, transfer can happen simultaneously in this instance. This means transfer will be effected from the deceased estate to the heir, from the heir to the purchasing third party, simultaneously. However, it must be kept in mind that such transfer is only permissible upon approval by the Master of the High Court. Thus the offer to purchase and acceptance may happen before the Master approves the Liquidation and Distribution account, but only upon its approval by the Master can transfer be permissible to take place.

In the third instance, where a third party purchases the property directly from the deceased estate, the executor assumes the position of the seller/owner and he/she signs in that capacity but that it must be stipulated that they are signing as executor. Under section 13 (1) of the Administration of Estates Act 66 of 1965, only a party issued with a letter of Executorship is empowered to sign on behalf of the deceased estate. For this kind of transfer to be valid the following must strictly be adhered to;

  1. Executor signs in his/her capacity, where otherwise ordinarily signed by the seller;
  2. Executor must be the holder of the letter of executorship;
  • The executor must be appointed in writing before signing the sale agreement as per the Alienation of Land Act, Section 2 (1);
  1. The Master must issue a certificate prior to transfer in terms of section 42 (2) of the Administration of Deceased Estates Act (in practice usually the Master only stamps a power of attorney from the conveyancer);
  2. Heirs must consent to the sale in writing.

Upon the sale of the property and transfer, the proceeds will be released into the deceased estate bank account and will be dealt with by the executor.

Van Deventer & Van Deventer Incorporated – Property Law Attorneys in Cape Town and Johannesburg

The processes described above are fraught with legal and technical considerations which must strictly be adhered to, and legal assistance from our able attorneys will make the process easier, faster, and secure.  

We stand ready to comprehensively assist you in that regard as well as numerous other areas of law. Contact us for more information.

 

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.

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