Selling a property out of a deceased estate, it can be done
A property can be sold out of a deceased estate; the only thing that you need to conclude the sale agreement is the Letters of Executorship which authorises the Executor to sign documents in respect of the sale.
After Letters of Executorship are issued, the Executor may instruct an estate agent to advertise the property for sale. When an interested buyer puts in an offer to purchase the property, the Executor can accept the offer by signing the sale agreement on behalf of the deceased estate. It is important to note that the sale agreement cannot be signed before Letters of Executorship are issued.
Transfer of the property from the deceased estate to the new ownermust go through the conveyancing process in accordance with the Deeds Registries Act 47 of 1937. The conveyancing process is carried out by a practising attorney who is qualified as a Conveyancer.
The only thing that you need to conclude the sale agreement is the Letters of Executorship which authorises the Executor to sign documents in respect of the sale.
The sale of a property out of a deceased estate must be approved by the Master of the High Court. As part of the conveyancing process, the Master’s approval is obtained by submission of an application in terms of Section 42(2) of the Administration of Estates Act 66 of 1965.
The following requirements must accompany the section 42(2) Application for Master’s endorsement:
- A certified copy of the written sale agreement of the property entered into between the Executor and the buyer
- Written confirmation by each heir of the deceased that they consent to the sale of the property as per the terms of the said sale agreement
- The Power of Attorney signed by the Executor authorising the Conveyancer to transfer the property from the deceased estate to the new owner
The Master will issue the Section 42(2) Certificate once the above requirements have been met.When the Conveyancer receives the Section 42(2) Certificate the transfer can be lodged at the Deeds Office.
The documents required for lodgement are as follows:
- Existing Title Deed.
- The rates of property must be paid up to date.
- The bonds on the property must be settled and cancelled.
- Section 42(2) Certificate.
- Transfer Duty Receipt.
- The Executor must sign a Power of Attorney authorising the Conveyancer to transfer the property to heirs of the deceased’s Will.
The cost of the transfer will be paid by the purchaser and not the estate. The estate must however ensure that the outstanding rates of the property is up to date and that the bond is sufficiently covered.
Author: Waseemah Doutie (LL.B.)
Attorney and Legal Consultant at Siyatec Executors