Selling a property from a deceased estate is more complex

It is well known that in South Africa the sale of property must be recorded in a written contract and must be signed by the purchaser and seller. The sale of a property out of a deceased estate is however more complex, says Laurence van Blerck of Knight Frank Residential SA.

Ideally the deceased would have made a will and appointed a professional, such as the family attorney, to be the executor of the deceased estate. Alternatively a family member may be appointed, together with an attorney.

Once the estate has been reported, normally within 14 days of death, to the Master of the Supreme Court, the Master will appoint an executor by issuing Letters of Executorship. It can take approximately eight weeks for the Master to issue Letters of Executorship and no one has the authority to act for the estate until these are issued.  The process, however,  can sometimes be speeded up. The executor has the task of winding up the estate of the deceased and is the only person who has authority to sign on behalf of a deceased estate. For example, an estate agent’s mandate to sell the property can only be signed by the executor(s).

It is important to note that a sale agreement, signed on behalf of the estate by a person other than the executor, is not valid from the outset and subsequent signature by an executor will not ratify the sale. If there is more than one executor then all executors must sign the sale agreement. Alternatively, if a resolution by the executors empowers one executor to sign, then this resolution must be executed and signed before the date of signing the sale agreement.

The estate agent must ensure the sale agreement includes a special condition stating that the sale is subject to the approval of the Master. There is a prescribed format which sets out the information required. The sale agreement must also be subject to the prior written permission of the heirs in the estate. This is a legal requirement and is lodged simultaneously with the application to obtain the approval of the Master. The format of this consent essentially means that the heirs confirm their agreement to the selling price of the property, the method of payment and terms and conditions of sale. Until these two consents are obtained there is no binding contract. Once the Master is satisfied that there are no objections to the sale, then permission for transfer will be granted.

The extra requirements of a sale out of a deceased estate inevitably mean that there will be additional delays, both in concluding the sale agreement and taking transfer at the Deeds Office. It is important that a purchaser is advised of these delays and kept informed as matters progress, or not, as the case may be, said van Blerck.

It is advisable to ensure that your estate agent understands all the requirements of this specialised type of sale, communicates well with all the stakeholders and together with the executor takes responsibility for driving the process so that no unnecessary delays occur, he said.

  Comment on this Article

  Please login to post comments

Post to my facebook wall
Characters remaining

    Latest Property News
    • 19 Jan 2018
      Extending from Randfontein in the west to Roodepoort in the east and including the towns of Krugersdorp and Magaliesburg, the West Rand has a plethora of property available to residents who choose to make this unique area their home.
    • 19 Jan 2018
      When it comes to financial planning, doing the work to ensure you’re prepared for unexpected emergencies is just as important as ticking off your other goals and New Year’s resolutions. The beginning of the year is also the perfect time to review your various insurance policies.
    • 19 Jan 2018
      No surprises at the first Monetary Policy Committee of 2018, as Reserve Bank Governor, Lesetja Kganyago, announced that the interest rates would stay at their current levels.
    • 18 Jan 2018
      The Southern Suburbs make up some of the most popular residential areas in Cape Town, comprising charming groups of suburbs which lie to the south-east of the slopes of Table Mountain. It is seen as the city's most expensive residential neighbourhoods with a choice of various private schools, upmarket eateries, wine estates, beautiful homes and trendy apartments.
    • 18 Jan 2018
      New year, new goals! If you’ve resolved to purchase your first property in 2018, then this 6-step guide from the Rawson Property Group is a must-read. It will help you navigate and simplify what is often be seen as a confusing process of buying your first home – right from the house-hunt to the house-warming.
    • 17 Jan 2018
      While the current property market may still favour buyers, it doesn’t mean that they shouldn’t be well prepared before putting in an offer to purchase.
    • 17 Jan 2018
      Lightstone lists Blair Atholl as the most expensive suburb with an average house price of R11.2 million, followed by Westcliff (R10.5 million), Dunkeld (R9.3 million), Sandhurst (R9.1 million) and Inanda (R7.2 million).
    • 17 Jan 2018
      As it currently stands, there are four main ways in which a home can be bought in South Africa, says Adrian Goslett, Regional Director and CEO of RE/MAX of Southern Africa, who adds that deciding in which legal entity to purchase the property is not a decision that should be entered into lightly, as each has its pros and cons.
    Subscribe to the MyProperty Newsletter

    Last Name  
    Email Address  
    Email Frequency
    Share this Page

    For Sale Property
    Rental Property
    More Options
    Connect with us