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Property

PASSING OF TRANSFER OF IMMOVABLE PROPERTY FROM A DECEASED ESTATE

Posted 07 April 2021

Denver Vraagom

For the purposes of this article we will narrow the ambit of our considerations herein to natural persons whose assets, including immovable property, do not form an asset in a joint estate, the value of the assets comprising the estate of the deceased amounting to more than R250 000.00, and the deceased having died testate i.e. in possession of a validly executed Last Will and Testament.

There are of course various iterations to the details set-out above and one would be best placed to consult a well experienced conveyancing attorney for assistance in concluding all estate processes to the satisfaction of the Master of the High Court, more especially so where a transfer of immovable property is to be dealt with.

Section 13 of the Administration of Estates Act (No. 66 of 1965) confirms the position that an estate of a deceased person may not be liquidated or distributed without Letters of Executorship having been first issued, or alternatively, by the direction of the Master of the High Court.

Insofar as the practicalities linked to the lodgement of transfer documents at the Deeds Office relates, with specific reference to the Power of attorney to Pass Transfer, the position set-out above is reverberated in Registrars Conference Resolution 66 of 2010, to the effect that the actions of any person purporting to act on behalf of the estate of a deceased person without proper authority to do so, would be void from the commencement of such action.

How does one go about obtaining Letters of Executorship for the purpose of selling an immovable property from a deceased estate, with the view to ultimately effecting the registration of the transfer of the immovable property at the Deeds Office? In summary, the basic reporting documents to be submitted to the relevant office of the Master of the High Court, would be as follows:

  1. Form J294 – Death Notice – which sets out various personal particulars of the deceased.
  2. Declaration of Marriage – signed by the surviving spouse of the deceased, if applicable, indicating how the deceased was married.
  3. Form J243 – Inventory – which sets out in brief the particulars of the deceased and lists the immovable and movable assets belonging to such deceased, as well as any claims in favour of the deceased.
  4. Form J190 – Acceptance of Trust as Executor – this particular form is submitted in duplicate bearing the completed details of, and to be signed by, the person to be appointed as Executor of the estate of the deceased.

The above-specified forms would be supported by the simultaneous submission of the  following documents:

  1. The original Death Certificate of the deceased or a certified copy thereof, accompanied by a certified copy of the Identity Document of the deceased;
  2. The original Last Will and Testament executed by the deceased, in addition to any possible Codicils thereto; and
  3. If applicable to the deceased, a certified copy of his/her Marriage Certificate, or Divorce Order as may be the instance, in addition to a certified copy of any Birth Certificates related to any minor children of the deceased.

Once the basic deceased estate reporting documents have been submitted to the relevant office of the Master of the High Court, and subject to the submission of any further information or documentation which may be requested by the relevant office of the Master of the High Court, an estate file number will be assigned to the reported estate. A file will be opened and in due course Letters of Executorship will be issued.

Upon the issuing of Letters of Executorship, an Executor of an estate will be appropriately empowered to deal with the transfer of immovable property. It is important to note that a written sale agreement can only be entered into at this stage.

In the instance where immovable property is sold to a 3rd party purchaser, transfer of the immovable property into the name of the 3rd party purchaser cannot be effected without the approval of the transaction from the Master of the High Court which is to be granted in terms of Section 42(2) of the Administration of Estates Act (No. 66 of 1965).

It will be necessary to appoint a conveyancer to attend to the registration of the transfer of the immovable property at the Deeds Office. In the interest of expediency and to the benefit of all concerned, one would again be best placed to appoint a well experienced conveyancer to facilitate the speedy issuing of the required Section 42(2) endorsement.

Please note: that in addition to specialist Conveyancing services, MacRobert Attorneys also offers a comprehensive Deceased Estate Administration service ranging from the drafting of your Last Will and Testament to the actual finalisation of the winding up of deceased estates, our Deceased Estate Administration services are available nationally.

 

For any enquiries about the drafting of a Will or the administration of a deceased estate, please contact our Deceased Estate Department:

Elma Deppe

Telephone number: (012) 425 3574

Email address: edeppe@macrobert.co.za