Losing a partner or a spouse is traumatic enough but being unprepared for the practical financial realities of death can make it all the more devastating. The only thing that can be said for the process of winding up an estate is that it follows a predictable pattern, so you can put plans in place that will make life, if not death easier to handle. Where the registered owner of immoveable property has died his/her property will need to be transferred to another person; normally a family member. The property will often need to be transferred to an heir or beneficiary nominated in the Will of the deceased, but sometimes it may be in terms of the Intestate Succession Act.
The transfer of immovable property from the deceased estate to the heirs or to a third party purchaser is a complex process, and is best handled by experienced conveyancing attorneys. When a person dies the Master of the High Court appoints an executor to administer the deceased estate. The Executor is the only person who is lawfully authorised and empowered to deal with the assets of the deceased.The purpose is to ensure an orderly winding up of the financial affairs of the deceased, and the protection of the financial interests of the heirs. Until an Executor is appointed, no-one can act on behalf of the deceased estate. This means, inter alia, no-one can sign a sale agreement in respect of an immoveable property belonging to the deceased, and no-one can sign any transfer documents in respect of such property.
Where a property is transferred to heirs, this can only take place at the end of the winding up process, i.e. when the Liquidation and Distribution account have lain open for inspection and objection for the prescribed period of time. If there are then no objections, the Master of the Court authorises the executor to go ahead with the distribution, including transfer of the property. One of the facts that those drawing up wills are not frequently aware of is that no transfer duty is payable on property bequeathed to heirs. It is important to note that once the Master is satisfied that there are no objections to the transfer, permission for transfer will be granted. The extra requirements of a transfer out of a deceased estate inevitably mean that there will be additional delays, with taking transfer at the Deeds Office. It is important that the heirs are advised of these delays and kept informed as matters progress, or not, as the case may be.
The administration of a deceased estate can be a lengthy and complicated process which can take anything from a few months to a few years to complete. It is always advisable to appoint someone knowledgeable in the various applicable acts and procedures to assist with the process. Appointing an agent will take this burden from you, and give you the ability to mourn your loved one without the added stress.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)