Here’s when you cannot sell the home of a deceased estate
“Sarah, it’s your mother.”
“Mom? What time is it?”
“Just after 4am.”
“4am? What’s wrong? Is it dad?”
Homeowners owe it to themselves and their family to draw up a valid will, stipulating beneficiaries, executor as well as keeping copies of these important documents in a safe and secure place.
“Finalising the estate of a deceased relative is a fairly complex process; one which is made infinitely more costly and time consuming if the family member died intestate (without a valid will),” says Bruce Swain, MD of Leapfrog Property Group, noting that not all wills are created equal. “Even if a homeowner has written a will it may not be valid. In order to ensure that their final testament is legally binding, it needs to meet the requirements outlined in Wills Act 7 of 1953.”
According to the Wills Act 7 of 1953 three conditions need to be met for a will to be valid:
#1 The writer of the will has to be older than 16
#2 The will must be in writing
#3 Each page, including the last, has to be signed by the testator. The final page also needs to be signed by two competent witnesses (who have to be 14 years of age or older). All witnesses need to be present at the same time at the signing of the will and cannot be beneficiaries of the will.
Swain strongly recommends that homeowners ask an expert attorney to draft their will, stipulating who is to inherit what, appointing an executor, and to advise the homeowner as to possible estate duties, capital gains tax and the cost of finalising the estate so that they can prepare properly.
“Each estate is unique but there are situations were no capital gains tax or even estate duty will apply and it’s best to consult with an attorney to do proper estate planning – sooner rather than later,” says Swain. “Remember, if this wasn’t done properly the owner will no longer be able to make amends, hence the importance of sorting this out in time – for the sake of the people left behind.”
If the owner has indicated who will inherit then the matter is simple (if the will is not contested). However, if no valid will was in existence and the estate is solvent, the assets will be disposed of as per the Intestate Succession Act no 81 of 1987. If no provision has been made for taxes (and limiting them where possible) the burden on the inheritors could be significant.
The assets may need to be sold to finalise outstanding debt in the estate, or that the heirs want to sell it. According to law firm, Smith Tabata Buchanan Boyes (STBB), should a homeowner have drafted a valid will and appointed an executor of their estate, “the nominated executor must first establish his or her authority to act on behalf of the estate by applying for and obtaining Letters of Executorship from the Master of the High Court”.
“Establishing an executor’s authority can take some time, depending on the case load at the High Court, but not having nominated one means that the heirs will need to wait for the court to appoint an executor which can well cause significant further delays,” says Swain, adding that it is important that a deceased’s property cannot be sold before the executor has been formally appointed by the Master of the High Court.
STBB indicates that, “No matter how great the opportunity, a purported sale will not be valid if the executor signing off has not been appointed, nor will a later signature ratify the sale.”
Swain also points out that the written consent of all heirs has to be obtained when selling property belonging to the deceased’s estate, upon the consent of the Master of the High Court.
Normally an executor will first determine what, if any, outstanding debt the deceased had upon the time of their passing. Because that debt has to be settled first, it may well necessitate the sale of the family home.
“I would strongly advise homeowners to share all the relevant documentation (from the will to bank statements and the like) with a trusted family member/executor so that they know where everything is, and how to proceed,” says Swain, noting that this will speed up the sale of the home if that is required. “However, even with everything in place heirs need to know that concluding an estate can be a lengthy process and that it will be some time before the executor will be able to proceed on a property sale, if needed.”