DECEASED ESTATE TRANSFER PROCESS

In a lot of cases concerning a deceased’s estate, attorneys find that the heirs, surviving spouse or family of the deceased seek to transfer the deceased’s property, however the deceased’s estate has not yet been reported to the Master of the High Court (Master’s Office).

Should the estate have not been reported, the attorney must arrange to meet with the heirs/surviving spouse/family in order to complete the reporting documents for the appointment of an executor to be made at the Master’s Office.

Once an executor has been appointed, the Letters of Executorship (LOE) have been issued and the solvency of the estate has been ascertained, the heirs/surviving spouse must decide if they would like to keep the property or sell out of the estate to an independent party. This article will focus on transfers to heirs, and similarly to surviving spouses.

If the property is to be transferred to the heirs or surviving spouse:

  • Should the property be bonded and there is life-cover over the bond: the settlement of the bond is immediately attended to. Once the bond has been settled, bond cancellation instructions are issued to the bond institution immediately.
  • Should the property be bonded and there is no life-cover: The heirs are to make application for a bond immediately after the estate has been reported in order to ensure that they qualify to “take over” the existing bond. This is in the case where the bond is not settled by way of a cash payment or sold out of the estate.
  • The Liquidation and Distribution (L&D) account must be submitted to the Master’s Office for acceptance within 6 months from date of issue of the LOE.
  • Once confirmation has been received from the Master’s Office that the L&D account has been accepted, the transfer process begins immediately:

STEP 1:

  • Request title deed and bond cancellation figures on the deceased’s existing bond. Once cancellation figures are issued by the Bank the bond account will be placed on hold;
  • Request rates clearance figures from the Local Authority (municipality). No transfer can be effected until the Registrar of Deeds is satisfied that the rates and taxes have been discharged.

STEP 2:

  • Obtain details of the financial institution and the bond registration attorneys from the heirs upon confirmation of the bond approval;
  • Levy clearance figures are requested from the Homeowners Association or Body Corporate (in the case of a sectional title);
  • When the bond is granted and electronic instructions are sent to the bond attorneys, guarantees are requested from the bond attorneys to cancel the deceased’s existing bond over the property.

STEP 3:

  • Transfer documents are then drafted by the conveyancer;
  • an appointment with the executor and the heirs will then be made in order to have the transfer documents signed,
  • The bond attorneys will arrange an appointment with the heirs to sign the bond documents;
  • The estate does not have to furnish electrical and entomologist certificates.

STEP 4:

  • Once the guarantees are received, they are delivered to the bond cancellation attorneys to obtain the Bank’s consent for the bond to be cancelled;
  • Transfer duty is exempt where the cause of transfer is an inheritance from a deceased estate;
  • Payment is made to the municipality as per the rates clearance figures and a rates clearance certificate is issued. The municipality takes between 7-10 working days to issue the certificate, but in some cases this may take longer and is usually the cause of delays in transfers;

STEP 5:

  • Upon receipt of the transfer duty exemption and rates (or levy) clearance certificate, the heirs’ bond registration and the deceased’s bond cancellation attorneys arrange for their respective documents to be simultaneously lodged in the Deeds Office for registration of the transfer;
  • Once all three attorney firms have lodged their respective matters in the Deeds Office, all the documents are examined by the Examiners at the Deeds Office.
  • If all the documents are in order the matter will be on prep. This means that the next day the matter will be registered at the Deeds Office provided all attorneys involved have all their requirements in order.  If not, the attorneys can hold over the matter and register after 5 working days giving them time to obtain their outstanding requirements.
  • On the day of registration all conveyancers involved will go to the Deeds Office and sign their respective deeds. This is when registration occurs, making the heirs/surviving spouse the new owner(s) of the property sold.
  • The time-frame from lodgement to registration at the Deeds Office takes between 6-10 working days, provided there are no queries raised on the documents;
  • Bank guarantees are then presented to the relevant financial institution for payment and payment effected to the deceased’s estate late bank account.

By: Randles Attorneys

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