Whose Permission Is Necessary To Sell A House From A Deceased Estate
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.
- Sale of Immovable Property from a Deceased Estate – when all the heirs agree to the sale:
When immovable property is sold from a deceased estate, the same conveyancing process is followed as would otherwise have been the case in a normal transaction between seller and purchaser. The key difference is that the property is vested in the deceased estate, and therefore, the Master of the High Court (hereinafter “the Master”) has the final authority to approve the sale or not.
According to 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. These Letters are crucial, as a sales agreement is valid only if signed by an executor who has been duly appointed. The appointed executor is authorised to market the property, sign the offer to purchase, and sign all other transfer documents on behalf of the estate.
Furthermore, Section 42(2) of the Estate Act stipulates that an executor (or conveyancer / transfer attorney) who wishes to transfer immovable property because of a sale must lodge with the registration officer, along with other deeds or documents, a certificate by the Master stating that no objection to the transfer exists.
In practice, the following documents are required to apply for this certificate:
a. An Application for Endorsement (JM33_42) completed and signed by the executor.
b. Power of Attorney to Pass Transfer signed by the executor and bearing conveyancer’s certificate. Upon approval,
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.
c. 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.
d. A certified copy of the deed of sale.
e. A certified copy of the title deed.
Section 49 of the Estate Act is one other important consideration 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 following the prescribed steps, the executor ensures that the sale is conducted fairly, transparently, and legally.
- What happens if one of the heirs refuses to sell the property?
Current law is unclear about the process when there is no consensus among the beneficiaries regarding the sale of immovable property. If one heir refuses to consent to the sale, the situation becomes complex, and the transfer process can be halted.
In such a case, Section 47 of the Act allows the executor to approach the Master with a Section 47 application, requesting the Master to either dispense with the dissenting heir’s consent or allow the executor to proceed with the sale without it. However, the Master has recently been reluctant to exercise this power and has tended to refer such disputes to the High Court for a decision.
This referral creates another problem. Even if litigation is initiated in the High Court, and significant costs are incurred, the courts are unwilling to substitute the Master’s discretion with their own. This reluctance is evident in recent cases like Mar-Deon Boerdery CC v Marais N.O and Others [2021] ZAGPPHC and Bester N.O v Master of the High Court and Another [2023] ZAWCHC, where the courts referred the applicants back to the Master for a decision.
This situation leaves the executor and the heirs who wish to sell the property in the same position, with seemingly no recourse, as neither the Master nor the courts are willing to make a decisive determination.