Selling or inheriting property in a deceased estate

Who deals with the property?

When someone dies, their assets form part of their deceased estate. The executor named in the will (or appointed by the Master of the High Court) is responsible for dealing with the property. The executor must first be authorised by the Master:

• Letters of Executorship are issued in estates with a value above R250 000.
• Letters of Authority may be issued in estates of R250 000 or less, under a simplified procedure.

Until then, nobody may sign an agreement to sell the property on behalf of the estate.

Route 1: Transfer to an heir

If the property is left to an heir, it is transferred to the heir once the liquidation and distribution account has lain open for inspection and no objection is outstanding. Transfer duty is not payable on an inheritance, but conveyancing and Deeds Office fees are.

Where there are several heirs, they may each receive an undivided share, or agree that one heir takes the property and the others receive other assets. These arrangements should be recorded properly in the estate account.

Route 2: Sale by the executor

If the property is sold, the executor signs the offer to purchase on behalf of the estate. The Administration of Estates Act requires the executor to sell in the manner and on the conditions agreed by all heirs, or, failing agreement, as the Master approves, unless the will provides otherwise. In practice this means:

• check whether the will gives the executor power to sell;
• if not, obtain the written consent of all heirs to the sale and its terms; and
• if the heirs do not all agree, apply for the Master's consent.

The sale can often proceed before the estate is finalised. The proceeds are paid into the estate and distributed in terms of the account.

Spouses married in community of property

If the deceased was married in community of property, the surviving spouse owns half of the joint estate, including half of the property. The surviving spouse must take part in any sale, and the deceased's half is dealt with in the estate.

Property in another province

It is common for an estate administered from Johannesburg to include a holiday home in the Western Cape, Eastern Cape or KwaZulu-Natal. The transfer is registered at the Deeds Registry for the area where the property is situated. We can attend to the estate and to the transfer, so that the family deals with one firm.

Practical points

• Keep the property insured and the municipal account paid during the administration.
• Obtain a valuation as at the date of death; it is needed for the estate and for capital gains tax.
• Check the title deed and any bond early, as the bank must be settled from the estate or the proceeds.