Deceased Estate Property Transfer to a Beneficiary
Key Takeaways:
Deceased estate property transfers involve the legal conveyancing process of passing assets to heirs or beneficiaries after an individual's death.
Executors play a pivotal role in managing the transfer, addressing debts and distribution.
Timely and meticulous handling is essential for a seamless transfer of assets to rightful heirs or beneficiaries.
Conveyancing relates to the legal process that transfers ownership of the home from the seller to the buyer. The conveyancer (who is an attorney) is usually appointed by the seller, but paid for by the buyer (the fact that the fees are normally covered by the buyer is simply a rule of thumb. But this article relates to the transfer of a property out of an estate to either the beneficiaries or to a purchaser of that proerty.
It’s not something that is necessarily set in stone and a different arrangement can be negotiated in your agreement of sale).
What is Conveyancing?
Conveyancing is not only a complicated process, but a time consuming one as well. Particularly in transactions related to the subdivision or consolidation of properties, the registration of servitudes or transfers of both divorce or deceased estates.
What does a Conveyancer do?
Firstly, it must be noted that no property sale or transfer can be concluded without having a qualified conveyancer on board.
A conveyancer is a lawyer that has passed an additional conveyancing qualification exam and is a specialist in the field of property and conveyancing. They perform a vital function where completing a property transaction is concerned.
Conveyancers attend to the process of transferring legal ownership of fixed property from one person (or a company or trust) to another. In a nutshell, this process amongst other things, involves ensuring the deed of sale meets all the legal requirements, including requesting and collecting supporting information (such the mortgage bond, cancellation figures, title deeds from the seller’s bank, compliance certificates from the seller, and the amounts from the municipality for a rates clearance certificate).
The conveyancer is also tasked with drafting all the necessary documentation (such as a “power of attorney to pass transfer” for the seller to sign, a declaration in respect of marital status, ID Number as well as the bond registration documentation for the purchaser when registering the bond) that needs to be lodged with the deeds office to finalise the registration of the sale.
What is a Deceased Estate Transfer?
First and foremost, lets cover what a Deceased Estate actually is. A deceased estate only comes into existence when a person has passed away and leaves assets behind, together with an accompanying will (if they were properly advised).
But, the actual estate portion of a deceased estate is made up of all the assets (after all liabilities and administrative costs have been subtracted) that are left behind at the time of the deceased’s passing. This can include immovable property, jewellery, shares and unit trusts. As long as it is not illegal, impractical or against public policy, a Deceased Estate can include anything (provided there is a valid will for testamentary succession).
But going back to Deceased Estate Transfers, this specifically refers to the transfer of immovable property (as set out above) from the deceased estate and can only be affected by transfer from one person to another by virtue of registration of the transfer in the Deeds office. Furthermore, when it comes to the transfer of property to an heir or heirs of the estate, the Executor must pass transfer of the property as directed by the will of the deceased, or if there is no will, according to the rules of intestate succession.
There are a number of steps to go through before this transfer process from the deceased estate can actually happen. And it starts with the Administration of the Deceased Estate, which includes –
Reporting the Deceased Estate to the Master of the High Court (Master’s Office);
Publishing a notice of the Deceased Estate (as soon as a Letter of Executorship has been issued) in the Government Gazette and in at least one newspaper circulating in the district where the deceased ordinarily resided;
Taking control of the assets of the Deceased Estate by the Executor (which includes requesting certificates of balances from creditors and debtors, closing bank accounts of the deceased and opening a Late Estate Account, valuation of both movable and immovable assets);
Opening by the Executor of the Liquidation and Distribution Accounts (which outlines how the estate will be distributed);
Lodgement of the Liquidation and Distribution Account with the Master of the High Court who will assess it and if all is in order, approve it to lay in inspection for 21 days. An advertisement (Section 35 of the Administration of Deceased Estates Act 66 of 1965), must be published notifying interested parties that the account will lay for inspection and any objections may be lodged with the Master, and
Distribution of the Deceased Estate – if there are no objections to the Liquidation and Distribution Account (after the 21-day inspection period), the Executor will then be required to distribute the inheritance accordingly. The assets will then be delivered and transferred to heirs and transfer takes place in the ordinary course i.e. immovable property will be transferred at the Deeds Registry (again, as set out above).
Note: An important consideration we must point out – The appointed Executor will not be permitted to transfer any fixed property before the L&D Account has lain open for inspection by the general public and approved by the Master of the High Court. The appointed conveyancing attorney (like those at Benaters) will need to lodge special documents with the Deeds Office which prove that the person to whom the property is being transferred is the rightful heir and that the transfer complies with Section 42 (1) of the Administration of Estates Act 66 of 1965.
Why you should hire a Conveyancer for a Deceased Estate Transfer?
Nothing can quite prepare you for the loss of a loved one. Even when it is expected. And having to deal with their Deceased Estate, the administration thereof and the ultimate transfer of any remaining inheritance (which may include immovable property) is often too much for loved ones to bear. It is a complicated process with so many in’s and out’s and do’s and dont’s that it can be utterly confusing, leaving you perplexed and overwhelmed. To say the least. We understand and we can empathise. Wholeheartedly.
It is therefore always prudent to obtain the assistance of suitably qualified conveyancers who will be able to support you (and your Executor) and guide you through the transfer process to ensure that you proceed on the correct basis. Keeping in mind that you are going through a grieving process where some issues are sensitive and need to be handled as such.
While it can be a complicated and emotional process, Benaters will guide and support you doing our utmost to ensure that your loved ones assets are distributed in the way they wanted them to be. Ensuring this difficult time is handled with care and respect.
Why should you trust Benaters to handle your Deceased Estate transfer?
At Benaters, we have successfully supported families with the transfer of property in deceased estates for many years.
And while the above information should not be considered legal advice (as it simply does not cover all the various complexities and important considerations that need to be taken into account), we implore (and encourage) you to get in touch with the attorneys at Benaters who are not only fully acquainted with wills and estates but the transfer of immovable property as well.
We are proud to be able to offer Conveyancing, a specialised niche service to you, our clients. We take our duties as Conveyancers very seriously (always keeping in mind the impact a property transfer can have on an individual or family) and therefore hold our work to very high standards. You can trust us with your property, because we treat the entire process as if we were going through it ourselves.
Whether you require support with the administration of a deceased estate or only the transfer of immovable property from a deceased estate – we have you covered.
We are here to help you. In any way we can! So please, get in touch and let us handle your property transfer in the best way we know how – professionally and with the utmost due care