Overview: Transfer of Immovable Property in a Deceased Estate

Introduction

It is common for people to become registered owners of Immovable Property during their respective lifetimes. However, what happens to the Immovable Property when these individuals pass away?

In South Africa, when the registered owner of Immovable Property has died, his/her property will need to be transferred to another person. Most registered owners die leaving their assets, including their Immovable Properties to loved ones in terms of their Last Will and Testaments.

It is the responsibility of the Executor appointed by the Master of the High Court in the Deceased Estate to ensure that any Immovable Property of the Deceased is transferred to the beneficiaries or alternatively if sold, transferred to the Purchaser.

Transfer of Immovable Property to a beneficiary in a Deceased Estate

The appointed Executor of a Deceased Estate is the only person who is lawfully authorised by the Master of the High Court to handle the assets of the Deceased. The Executor is required to effect transfer of the Immovable Property in terms of the Last Will and Testament of the Deceased. When there is no Will, the provisions of The Intestate Succession Act 81 of 1987, as amended will determine to whom the Immovable Property must be transferred.

There is no transfer duty payable in these circumstances. However, the Deceased Estate will bear the conveyancing costs including disbursements such as the Deeds Office fee. The Deceased Estate will also bear the cost of obtaining Rates and Levy Clearance Certificates, valid until after the anticipated date of registration. The transfer cannot be registered before the Liquidation and Distribution Accounts have laid for inspection by the general public.

The Conveyancer handling the transfer will need to certify in terms of Section 42 (1) of the Administration of Estates Act 66 of 1965, as amended (hereinafter referred to as the Administration of Estates Act), that the transfer is in terms of the Liquidation and Distribution Account. The Liquidation and Distribution Account must first be approved by the Master of the High Court and have laid for inspection.

Sale by the Executor to a Third-Party Purchaser

Immovable Property can be sold by the Executor of the Deceased Estate directly to a Third-Party Purchaser should the beneficiaries consent thereto. The Executor will be required to sign the Offer to Purchase/Sale Agreement on behalf of the Deceased Estate and in due course sign the transfer documents, also in such capacity.

In terms of Section 13(1) of the Administration of Estates Act, a person may not sign an Agreement if he/she has not been issued with Letters of Executorship. In order to satisfy the requirements of Section 2(1) of the Alienation of Land Act 68 of 1981, as amended, the Executor must be appointed in writing before he/she signs any Offer to Purchase/Sale Agreement.

The Conveyancer will need to obtain a Section 42 (2) Administration of Estates Act Certificate from the Master of the High Court where the Estate was reported, to certify that the Master has no objection to the said transfer.

The costs of the transfer, including transfer duty, would normally be payable by the Purchaser. The Estate would carry the costs of obtaining Rates and Levy Clearance Certificates valid until after registration, and of cancelling any bonds registered over the Property.

Conclusion

As seen above, The Executor in a Deceased Estate is the only person authorised by law to transfer Immovable Property of behalf of a Deceased Estate.

The Executor also bears the responsibility, to ensure that his/her duties and responsibilities are complied with. It is always advisable that an Attorney be instructed to assist with the Administration of the Deceased Estate and that a Conveyancer be instructed timeously to assist with any transfer of Immovable Property.

Here at SchoemanLaw, we can assist with the administration of all Deceased Estates, Immovable Property transfers and Conveyancing-related matters.

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