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How death impacts the transfer of immovable property
By LB Vorster
A simple property transaction can become fairly complicated if, for example, the seller dies during the transaction, i.e. prior to transfer of the property to the purchaser having been affected at the Deeds Office.
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Sale prior to death An agreement of sale that was entered into prior to the death of either the seller or the purchaser and in respect of which transfer has not yet taken place, remains valid and enforceable in all respects. However, the death of either party will inevitably cause delays.
In the event of the death of a seller, for example, the transferring attorney/s will have to obtain a ‘Power of Attorney to Pass Transfer’ from the executor of the estate of the seller. However, before that can happen, the executor needs to be formally appointed by the Master of the High Court by virtue of Letters of Executorship. This, unfortunately, can take some time as a number of documents have to be completed and signed by the nominated executor which, together with the original will and copies of various supporting documents, have to be submitted to the Master for due consideration.
This may give rise to frustrating delays in the transfer process that otherwise would have been completed within 2 to 3 months from date of acceptance by the seller of the purchaser’s offer. It also means that had the parties already signed their respective transfer documents at the time of death, all those documents will become obsolete and will have to be replaced by freshly prepared and signed transfer documents that will reflect the demise of the seller and that the estate of the latter is now being represented by the duly appointed executor.
In addition, the ‘Power of Attorney to Pass Transfer’ will have to be endorsed by the Master of the High Court which can cause further delays. The Master will only endorse the said power of attorney in terms of section 42(2) of the Administration of Estates Act once it has satisfied itself that all its documentary requirements have been met.
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