An estate late property transfer refers to the legal process of transferring ownership of property from a deceased individual to the rightful beneficiaries or heirs. This process is governed primarily by the Administration of Estates Act 66 of 1965, which outlines the necessary steps to be taken when administering a deceased person’s estate.
The first step is to report the deceased estate to the Master of the High Court in the jurisdiction where the deceased resided.
Secondly, the Master of the High Court will appoint the executor to administer the estate. The executor is usually named in the deceased’s will. If there is no will or appointed executor, the Master will appoint a person nominated by the heirs. The executor’s role includes gathering and valuing assets, settling outstanding debts, and distributing the estate according to the deceased’s wishes or the applicable laws of intestate succession. The executor must further identify and document all assets and liabilities of the deceased, including any properties. This includes obtaining valuations for properties to determine their fair market value. Outstanding debts need to be paid, before distributing the estate. This may involve selling assets, including properties, if necessary.
Thirdly, once all debts and taxes have been settled, the executor can proceed with the distribution of the estate. This involves transferring ownership of the property to the beneficiaries or heirs as specified in the deceased’s will or as determined by the laws of intestate succession. To transfer property ownership, the conveyancer must among others obtain a certified copy of the Letters of Executorship, a certified copy of the will and testament and a certified copy of the Liquidation and Distribution Account. If there was no will and testament lodged, the conveyancer will request a certified copy of the Next of Kin Affidavit to prove the heirs to which the property is transferred in terms of the Intestate Succession Act. The Next of Kin Affidavit will also be applicable should the will and testament not specifically mention an heir. For example, I bequeath my entire estate to my kids. Because the kids are not specifically mentioned by name, a next-of-kin affidavit needs to be lodged to prove who all the deceased’s kids are. The transfer process itself involves registering the transfer with the relevant Deeds Office and paying the necessary fees, rates and taxes related to the property.
The documents lodged for an inheritance property transfer at the Deeds Office are the following:
1. Concept Deed of Transfer.
After registration, this will be the heir’s proof of ownership of the property. The Deed of Transfer receives a specific number starting with T, for example, T1234/2024.
2. Power of Attorney signed by the Executor in the estate.
This provides the conveyancer with the power to appear in front of the Registrar of Deeds and transfer the property from the estate to the relevant heir(s).
3. Transfer Duty Exemption Certificate.
In terms of section 9 of the Transfer Duty Act 40 of 1949.
4. Rates clearance certificate issued by the relevant municipality.
No property can be transferred if there are outstanding rates and taxes payable to the municipality. Clearance figures are usually issued four months in advance in a property transfer transaction and after payment is made of the clearance figures, the municipality issues a Clearance Certificate which is valid for 60 days.
5. The existing Title Deed of the property.
If the Title Deed has been lost a further application for a lost title deed in terms of Regulation 68(1) of the General Regulations to the Deeds Registries Act needs to be lodged.
6. Section 42(1) certificate.
In this certificate, the conveyancer stipulates that the L&D Account has lain for inspection free of objection at the Master of the High Court for 21 days and confirms that the property is being distributed per the stipulations of the L&D Account.
7. Master certified copy of the Will and Testament of the deceased.
In the absence of a Will and Testament the following documents are lodged:
7.1 Master certified copy of the L&D Account
7.2 Master certified copy of the Next of Kin Affidavit listing all the heirs
7.3 Affidavit by the Executor that confirms that the deceased died intestate.
Estate late property transfers can be complex and time-consuming due to various factors, including disputes among beneficiaries, complex estate structures, and legal requirements.
It’s crucial to engage the services of a qualified attorney or conveyancer specialising in deceased estate transfers to ensure compliance with the legal procedures and to navigate any challenges that may arise. By following the necessary steps and fulfilling the obligations set forth by the law, the estate’s assets, including properties, can be appropriately distributed to the rightful beneficiaries or heirs, providing them with peace of mind during a difficult time.
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