Transferring a Property After Death

A reader has posed an interesting question, relating to the transfer of a property at the owner’s death, to our panel of experts.

Her parents owned a property and when her father passed away it was never transferred to her mother, the legal heir. She apparently could not afford the transfer fees.

Even though it was not formally transferred into her name, the reader’s elderly mother has now drafted a will in which she nominates the person that will next inherit the property.

The reader wants to know how the “transaction” will be affected.

Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says all deceased estates have to be reported to the Master of the High Court and an executor has to be appointed in those with a value of more than R125 000. “Estates under this threshold are dealt with in a simplified manner, as prescribed in the Administration of Estates Act No 66 of 1965.”

Geldenhuys says if an executor is not nominated in the will, the Master will appoint one from those nominated by heirs and family.

“It is the executor’s task to make sure that the wishes expressed in the deceased’s will are exercised, that liabilities are settled and that assets are transferred to the heirs. To this end, one of the main tasks of the executor is to produce a Liquidation and Distribution Account, which sets out how the estate has been distributed.”

At various points in this process the executor has to report to the Master – firstly by lodging the above account and, once the process has been finalised, by providing proof of liabilities paid and assets transferred to heirs, according to Geldenhuys.

“If there is fixed property in the estate, proof that it has been transferred to the relevant heir must also be provided.”

The Master, says Geldenhuys, will not regard the estate as finalised until all these requirements have been met and, as such, the estate will remain “open”. “This may have been the case in respect of our reader’s matter.”

Schalk van der Merwe from Rawson Properties Helderberg says the Deeds Registries Act of 1937 provides in Section 14 that “transfers of land . . . shall follow the sequence of the successive transactions in pursuance of which they are made . . .”

“Therefore, in the event of the mother’s death, the property will first have to be transferred to her estate before it can be transferred to the new beneficiary. Similarly, if you buy a property and sell it before the transfer has been registered, the transfer into your name has to be finalised before the transfer to the next purchaser can take place.”

Van der Merwe says certain fees are payable to effect the transfer from the estate, although it is important to remember that no transfer duty is payable in a deceased estate. “Transfer duty is the tax portion relating to the value of the property and is payable to SARS.”

The attorney doing the transfer from the estate to the new owner will be entitled to charge a predetermined fee, according to Van der Merwe.