Transferring property from a deceased estate.

For all, accepting the loss of a loved one is an extremely difficult task. For most, the process that follows their death, even more so. This article focuses on explaining the process transferring property from a deceased estate. Please keep in mind that this is a general overview of the process, and it should be appreciated that each estate has its own circumstances which can lead to variations of the property transfer process as set out below.

Distinguishing between the type of transfer

Immovable property can be alienated from a deceased estate in one of two ways. It can either be transferred from a deceased estate by way of inheritance either through a valid Will left by the deceased or by way of Intestate Succession. Alternatively, a Deed of Sale can be concluded in terms of which the Executor/ Master’s Representative of the estate sells immovable property directly from the estate to a third party.

Important documents required

Before any Conveyancer can assist with the transfer of immovable property from a deceased estate, the estate must be lodged at the Master’s Office so as to obtain a Letter of Executorship/ Letter of Authority (depending on the total asset value of the estate). This Letter enables the Executor/ Master’s Representative of the estate to deal with all property in the estate, including the transfer of immovable property. The issuing of this Letter can take up to 15-21 working days after receipt of the lodgment documents by the Master’s Office.

Other important documentation includes, but are not limited to: copies of the Identity Documents of all parties involved, proof of addresses of all parties, proof of bank account details of all parties involved, proof of each parties’ marital status, proof of Income Tax details, a Master Certified copy of the Will of the deceased (if applicable), a Master Certified copy of the Next-of-Kin Affidavit (if applicable) etc.

Process of a transfer in terms of an inheritance

Inheritance of immovable property from a deceased estate can take on two forms. It can be inherited in terms of a valid Will left by the deceased, or it can be in terms of the working of the Intestate Succession Act 81 of 1987 if no valid Will was left behind.

Transfer of immovable property in terms of inheritance cannot be affected until the Liquidation and Distribution Account (“the Account”) of the deceased’s estate has laid open for inspection for a period of 21 days and no objections against the account were received. This process will be dealt with by the Attorney/ Agent appointed to assist with the administration of the estate.

The Account, as well as the Master certified copy of the Will of the deceased (if applicable) will have to be lodged at the Deeds Office in order to successfully transfer immovable property by way of inheritance.

The timeframe of this entire process is entirely dependent on the progress made in administrating the deceased’s estate. Once lodged at the Deeds Office, registration is normally affected within 4 – 6 weeks.

Costs: in terms of inheritance, the estate will have to bear all costs accompanied by the transfer of the immovable property, however, it can be agreed upon by the heir that he/she/ it will, in the event of a cash shortfall in the estate, pay certain costs relating to the transfer.

Process of a transfer in terms of an estate sale

A Deed of Sale will be signed by the Executor/ Master’s Representative in her/ his/ their capacity as such and will also sign all relevant transfer documents on behalf of the estate.

In order to continue with the alienation of immovable property from a deceased estate in terms of a Deed of Sale, the Master must give his/ her consent to the sale. This consent is given by way of a Section 42(2) Certificate which is issued in terms of the Administration of the Estates Act 66 of 1965. This process can easily take up to six months to complete as it is primarily dependent on the functioning of the Master’s Office.

Transfer costs in this instance is payable by the purchaser of the property. The other expenses, including, but not limited to, Municipal Rates Clearance, Levy Clearance and cancellation of any existing bonds will be payable by the estate.

Upon receipt of the Section 42(2) Certificate, the Conveyancer will be able to lodge the necessary documentation at the Deeds Office and registration is normally affected within 4 – 6 weeks.

Conclusion

Although the process of losing a loved one is a difficult task, the process of alienating immovable property from the estate does not have to be. We at Faure & Faure are specialized in the transfer of immovable property from deceased estates and vow to make the process as easy as possible for those left behind.

Article by Erika Oosthuizen, Attorney at Faure & Faure Inc.  For more information, contact 021 871 1200 or email contact@faurefaure.co.za

Erika Oosthuizen, Attorney. Contact her for more information transferring property from a deceased estate.
Faure & Faure Inc. – Your partner in Law in the Paarl and Boland Area.

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