As you sign the deed of sale of your newly bought property, you realise that the seller is the executor in a deceased estate. What should you look out for when buying from a deceased estate and what is the process?
The executor in a deceased estate is appointed by the Master of the High Court after the deceased estate is reported. This appointment allows the executor to step into the shoes of the deceased person and act on their behalf as well as in the best interest of the heirs in the deceased estate.
When immovable property is sold out of a deceased estate, the appointed executor must sign the agreement of sale. If more than one executor was appointed, all the executors must sign the agreement. In terms of section 13 of the Administration of Estates Act, the executor in a deceased estate may not act on behalf of the estate unless the letters of executorship (appointment) have been issued by the Master. Any agreement signed by an executor before such appointment is issued, will be null and void and of no force or effect.
If there is a surviving spouse or other co-owners on the Title Deed of the property, they will have to sign the agreement of sale with the appointed executor and subsequently transfer the property to the purchaser together with the appointed executor.
The sale of immovable property out of a deceased estate is subject to the consent of the Master of the High Court in terms of section 42(2) of the Administration of Estates Act and the heirs in the estate. The heirs in a deceased estate are determined by the last will and testament of the deceased or if there is no will, by the Intestate Succession Act.
The estate agent or conveyancer drafting the deed of sale needs to insert the consent of the Master as a condition to the deed of sale. This is not just a special condition in the deed of sale but a suspensive condition. If the Master does not grant their permission for the property to be sold to the purchaser, there is no legal binding agreement. To apply for the Master’s consent the following documents are lodged at the Master’s office:
1. Application in terms of section 42(2) of the Administration of Estates Act
2. Certified copy of the signed deed of sale
3. Originally signed power of attorney (signed by the executor and their witnesses)
4. Consent forms of all the heirs
If the Master has no objection to the sale and they are satisfied that all the heirs lodged their consent to the sale, they will endorse the power of attorney with their stamp of approval. This endorsed power of attorney is lodged at the Deeds Office with the rest of the transfer documents in order to effect transfer of the property into the name of the purchaser. If the power of attorney is not endorsed with the Master’s consent, the Registrar of Deeds will reject the registration of the property into the name of the purchaser until such endorsement or consent from the Master has been obtained.
The extra requirements in the sale of immovable property out of a deceased estate will constitute additional delays in concluding the agreement of sale and the registration process at the Deeds Office. It is imperative that the heirs and purchaser are informed of these delays and kept informed on the progress of the transaction on at least a biweekly basis. If the estate agent, appointed executor and conveyancers work together, unnecessary further delays can be avoided and the purchaser may not even feel burdened by the extra requirements.
Before signing a deed of sale, speak to a conveyancer to advise you accordingly especially if it is a speciated sale such as a sale of immovable property out of a deceased estate.
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