- A deceased estate in South Africa is represented by an executor appointed by the Master of the High Court in the region in which the deceased resided. The appointment is only valid when letters of executorship are issued by the Master. Any agreements entered into prior to the date of the letters of executorship are null and void.
- The estate administration process can take a minimum of 6 months to be finalised, and time frames depend on the complexity of each estate and its assets.
- The conveyancing process of transfer of ownership can take place simultaneously with the estate administration. The executor has to advertise the estate account prior to transfer of the property or the Master’s office will not endorse the transfer.
- All heirs to an estate have to consent to a sale of property . Objections to a sale are lodged with the Master and hopefully resolved quickly with the assistance of the attorneys involved in the estate administration and the transfer.
- Heirs inheriting a property in terms of a Will or in terms of intestate succession may jointly elect to sell instead of taking transfer. On written agreement they may instruct the executor to sell directly from the estate to a third party.
- In terms of South African law, persons younger than 18 years are minors. When a property is sold and an heir is a minor, that heir’s share of the proceeds of sale or any inheritance is placed in Trust for the benefit of the heir. The heir takes control of his inheritance on reaching majority or by a later age determined in the Trust.
- A Testamentary Trust is formed in a deceased’s Will. An Inter vivos Trust is registered during one’s lifetime.
- A Trust is an independent legal entity with a registration number issued by the Master’s office. It is represented by Trustees appointed by the Master of the High Court.
- At present it takes 6-8 weeks to have a Trust registered in South Africa. Foreign Trusts also have to be registered in South Africa and obtain SA income tax numbers before they may enter into agreements of sale to purchase property locally.
- A deceased estate is not a separate entity from the deceased person so does not have a separate income tax number. The deceased’s tax affairs need to be attended to by the executor during the administration of the estate.
- A sale from a deceased estate goes through the same conveyancing procedure as a sale from a living seller. The transfer costs are identical. A deceased estate property that is bonded has to instruct its bank to cancel the bond in the same manner as a living seller.
- Once transfer of the property is registered, the executor notifies the Master’s office, and after settlement of all estate liabilities, the executor distributes the proceeds to the heirs.
REFQAH FATAAR HO-YEE
DIRECTOR PROPERTY LAW
STBB SMITH TABATA BUCHANAN BOYES
tel 021 673 4700
082 782 7771