It is well known that in South Africa the sale of property must be recorded in a written contract and must be signed by the purchaser and seller. The sale of a property out of a deceased estate is however more complex, says Laurence van Blerck of Knight Frank Residential SA.
Ideally the deceased would have made a will and appointed a professional, such as the family attorney, to be the executor of the deceased estate. Alternatively a family member may be appointed, together with an attorney.
Once the estate has been reported, normally within 14 days of death, to the Master of the Supreme Court, the Master will appoint an executor by issuing Letters of Executorship. It can take approximately eight weeks for the Master to issue Letters of Executorship and no one has the authority to act for the estate until these are issued. The process, however, can sometimes be speeded up. The executor has the task of winding up the estate of the deceased and is the only person who has authority to sign on behalf of a deceased estate. For example, an estate agent’s mandate to sell the property can only be signed by the executor(s).
It is important to note that a sale agreement, signed on behalf of the estate by a person other than the executor, is not valid from the outset and subsequent signature by an executor will not ratify the sale. If there is more than one executor then all executors must sign the sale agreement. Alternatively, if a resolution by the executors empowers one executor to sign, then this resolution must be executed and signed before the date of signing the sale agreement.
The estate agent must ensure the sale agreement includes a special condition stating that the sale is subject to the approval of the Master. There is a prescribed format which sets out the information required. The sale agreement must also be subject to the prior written permission of the heirs in the estate. This is a legal requirement and is lodged simultaneously with the application to obtain the approval of the Master. The format of this consent essentially means that the heirs confirm their agreement to the selling price of the property, the method of payment and terms and conditions of sale. Until these two consents are obtained there is no binding contract. Once the Master is satisfied that there are no objections to the sale, then permission for transfer will be granted.
The extra requirements of a sale out of a deceased estate inevitably mean that there will be additional delays, both in concluding the sale agreement and taking transfer at the Deeds Office. It is important that a purchaser is advised of these delays and kept informed as matters progress, or not, as the case may be, said van Blerck.
It is advisable to ensure that your estate agent understands all the requirements of this specialised type of sale, communicates well with all the stakeholders and together with the executor takes responsibility for driving the process so that no unnecessary delays occur, he said.