When an executor has been appointed by the Master through the issuance of Letters of Executorship, their primary duty is to finalise the administration of the estate as soon as possible. This includes taking control of the deceased estate assets, selling them if necessary to pay all estate liabilities, administration costs and estate duty (if any) and distributing the residue amongst heirs and legatees in terms of the provisions of the will or Intestate Succession Act. This article outlines the legal process involved in selling an immovable property from the deceased estate.
In terms of Section 13(1) of the Administration of Estates Act (Estate Act), a person may not sign an agreement if they have not been issued with Letters of Executorship. The granting of Letters of Executorship is a crucial requirement as an agreement of sale will only be valid if signed by an executor who has been appointed by virtue of Letters of Executorship. The appointed executor will be authorised to market the property, sign the offer to purchase and sign all other transfer documents on behalf of the estate.
Additionally, Section 42(2) of the Estate Act stipulates that an executor who desires to effect a transfer of any immovable property in pursuance of a sale shall lodge with the registration officer, in addition to any such other deed or documents, a certificate by the Master that no objection to such transfer exists. In practice, to apply for this certificate the following documents need to be lodged:
- An Application for Endorsement (JM33_42) completed and signed by an executor.
- Power of Attorney to Pass Transfer signed by an executor and bearing conveyancer’s certificate. Once approved, the Master will not issue a separate certificate but will instead place a stamp/endorsement on the Power of Attorney to confirm no objection to the sale.
- Written consent from all heirs confirming that they have no objections to the sale of the immovable property. If any of the heirs is a minor, consent must be provided by their trustees.
- A certified copy of the deed of sale.
- A certified copy of the title deed.
Section 49 of the Estate Act is one other important section to consider when selling a property from a deceased estate. It states that If any executor or his spouse, parent, child, partner, employer or employee, or agent purchases any property in the estate which he has been appointed to liquidate and distribute, the purchase shall, subject to the terms of the law (if any) of the deceased and in the case of the executor who is the surviving spouse of the deceased, to the provisions of Section 38, be void unless it has been consented to and is confirmed by the Master of the court, or curator, purchases any properties which he has been appointed to administer, the purchase be void unless it has been consented to or is confirmed by the Master of the court. This section does not prevent an executor from purchasing property from the deceased estate, but it requires approval from the Master to ensure transparency and prevent conflict of interest.
In conclusion, the executor plays a pivotal role in managing the estate’s assets, including the sale of property, but must adhere to the necessary legal requirements outlined in the Administration of Estates Act. The process involves obtaining the necessary Letters of Executorship, obtaining consent from heirs, and receiving approval from the Master of the High Court. By adhering to the steps as prescribed by the law, the executor ensures that the sale is conducted fairly, transparently, and in accordance with the law.
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