Denoon Sampson Ndlovu Inc | Deceased Estate Transfers
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Deceased Estate Transfers

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.

Very important, when someone dies all Powers of Attorney automatically fall away so no-one can act in terms of one of them either. This would include a Power of Attorney to register a transfer.

There Are Three Scenarios That May Arise:

TRANSFER OF PROPERTY TO AN HEIR IN A DECEASED ESTATE

The Executor would pass transfer of the Property in terms of the Will or of Intestate Succession;

There will be no transfer duty payable but the estate will bear the conveyancing costs including disbursements such as the deeds office fee;

SALE OF THE PROPERTY BY THE DECEASED PRIOR TO DEATH

If the deceased sold the property during his or her lifetime, the transfer process will have to be stalled until the Master of the High Court has appointed the Executor;

SALE BY THE EXECUTOR DIRECTLY TO A PURCHASER

Should the Executor deem it beneficial, or should the heirs or the beneficiary wish, the Executor can cause the property to be marketed and sold, even before the Liquidation and Distribution account has laid for inspection;

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The Executor would pass transfer of the Property in terms of the Will or of Intestate Succession;

There will be no transfer duty payable but the  deceased estate will bear the conveyancing costs including disbursements such as the deeds office fee;

The Deceased Estate will also need to 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 will need to certify in terms of Section 42 (1) of the Administration of Estates Act that the transfer is be in terms of the Liquidation and Distribution account which has laid for inspection;

Copies of the Will (if there is one) and the Liquidation and Distribution account, certified by the Master, will need to be lodged at the deeds office with the other documents for registration.

If the deceased sold the property during his or her lifetime, the transfer process will have to be stalled until the Master of the High Court has appointed the Executor;

Any Power of Attorney appointing someone to act on behalf of the deceased or appointing a Conveyancer to appear before the Registrar of Deeds, will automatically be cancelled and be of no further use;

Once the Executor is appointed he or she steps into the shoes of the Deceased and passes transfer;

The Conveyancer will need to obtain a Section 42 (2) (of the 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 transfer;

The costs of the transfer , including normally transfer duty, would 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.

Should the Executor deem it beneficial, or should the heirs or the beneficiary wish, the Executor can cause the property to be marketed and sold, even before the Liquidation and Distribution account has laid for inspection;

The Executor would sign the sale agreement in his capacity as such and in due course would sign the transfer documents, also in such capacity;

The Conveyancer will need to obtain a Section 42 (2) certificate from the Master of the High Court where the estate was reported, to certify that the Master has no objection to the transfer;

The costs of the transfer , including normally transfer duty, would 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.

The Administration of a Deceased Estate is itself a complex process. Death is a difficult time for all concerned and few are equipped to cope with all the legal and financial consequences of death. Our dedicated and specialised department can be relied upon to ensuring the safe transfer of your immovable property to your beneficiaries or other party entitled to it.

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