TRANSFER OF DECEASED ESTATE PROPERTY

Who must pass transfer?

Where property that does not form an asset in a joint estate is registered in the name of a deceased person, the executor or representative in the estate of the deceased is the appropriate person to pass transfer of such property.
Where the property does form an asset in a joint estate, the surviving spouse shall, in terms of section 21 of the Deeds Registries Act 47 of 1937, be joined in his/her personal capacity with the executor of the estate of the deceased spouse, except: –

The executor is only dealing with the share of the deceased spouse.
Where the land has been sold to pay the debts of the joint estate.
Where there has been massing of the joint estate and the surviving spouse has adiated.
Where the transfer is in favor of the surviving spouse.
Where the surviving spouse, as executor, has signed the power of attorney to transfer.

What is an executor/representative?

Executor/representative is any person authorized to act under the letters of executorship/authority issued by the Master of the High Court, in terms of the provisions of the Administration of Estates Act 66 of 1965 (“the Act”)

STATUTORY (LEGAL) REQUIREMENTS TO PASS TRANSFER:

Administration of Estates Act

In terms of section 13(1) of the Act, no person shall liquidate or distribute the estate of any deceased person except under letters of executorship granted or signed and sealed under this Act, or an endorsement made under section 15, or in pursuance of a direction by the master.

Deeds office requirements

Considering the above, it is abundantly clear that if a power of attorney to pass transfer was executed/signed prior to the appointment of executor/representative, such power of attorney is void ab initio (void from the inception) and transfer lodged with the registrar of deeds will certainly be rejected as provided for by Registrar’s Conference Resolution 66 of 2010.