WHO MUST EFFECT TRANSFER IN AN ESTATE TRANSFER?

TO ALL ESTEEMED BUSINESS PARTNERS

Number

16/2017
Where land is registered in the name of a deceased person, which does not form an asset in a joint estate, the executor or representative in the estate of the deceased is the appropriate person to pass transfer of such land.

An executor is someone who is authorized to act under letters of executorship granted or signed and sealed by a Master of the High Court, or under an endorsement made under section 15 of the Administration of Estates Act, 66 of 1965. In terms of section 13(1) of the Administration of Estates Act of 1965 no person shall liquidate or distribute the estate of any deceased person except under letters of executorship granted and signed or sealed under the Administration of Estates Act 66 of 1965, or under an endorsement made under section 15 (referring to an assumed executor) or in pursuance of a direction by the Master (see also the definition of “executor” in section 102 of the Deeds Registries Act 47 of 1937)

Where the power of attorney to pass transfer is executed prior to the appointment of the executor, such power of attorney is void ab initio (see Brand NO v Volkskas Bpk and Another 1959 (1) SA 494 (T).

However, where a property is attached by the sheriff after the death of the owner and sold in execution, the sheriff may pass transfer (see RCR 65 of 2010). Similarly, where immovable property was attached and sold in execution and the owner subsequently dies the Sheriff, as statutory agent, may proceed with the transfer, notwithstanding the provisions of section 30 of the Administration of Estates Act 66 of 1965 (see RCR 17 of 2012).

In terms of RCR 66 of 2010 it was held that where a person passed away and subsequent to the death a family member sold the deceased person's property, prior to an executor being appointed, such transaction is null and void.

Where a company, consisting of only one director, has sold immovable property during the lifetime of such sole director and the land must now be transferred the executor cannot pass transfer. A new director will have to be appointed to perform the act of registration (RCR 25 of 2012).

When land forms an asset in a joint estate, the surviving spouse must, in terms of section 21 of the Deeds Registries Act, be joined in his/her personal capacity with the executor of the estate of the deceased spouse to pass transfer of immovable property, except -
(a) where the executor is only dealing with the share of the deceased spouse; or
(b) where the land has been sold to pay the debts of the joint estate; or
(c) where there has been massing of the joint estate and the surviving spouse has adiated; or
(d) where such transfer is in favour of the surviving spouse; or (e) where the surviving spouse, as executor, has signed the power of attorney to pass such transfer.

Where the executor transfers land by virtue of any of the above exceptions (a) to (e), the causa of the deed of transfer must also indicate that the transfer is on behalf of the joint estate and the joint estate must be divested in the divesting clause (regulation 50(2)(c)).

For any queries please contact our property law division at the details below:

Allen West

Tel: 012 425 3549

Daleen Loubser

Tel: 012 425 3489
dloubser@macrobert.co.za
Disclaimer: This newsflash is for general information only and should not be used as legal or professional advice. No liability can be accepted for any errors or omissions, nor for any loss or damage arising from reliance and any information therein