Selling or buying immovable property from a deceased estate can sometimes be lengthy and usually takes longer to finalise in comparison to a ‘normal’ registration of transfer. Therefore, it is vital that estate agents inform the prospective buyers of the potential delays and what to expect from such a transfer.

1. We have prepared a short list of pitfalls that can cause a delay in the registration of transfer that both parties to the agreement of sale should be aware of:
   Only the executor can issue a mandate to an estate agent to market the property. The executor can only enter into an agreement of sale once they are in possession of the Letters of Executorship issued by the Masters Office. To obtain such Letters of Executorship, it can take anytime between 3 weeks to 3 months, and sometimes even longer! Any agreement of sale that has been entered into before the issuing of the Letters of Executorship from the Masters Office is null & void and of no force or effect, and cannot be ratified! This is confirmed in terms of section 13(1) of the Administration of Estates Act 66 of 1965.
2. All the heirs of the deceased estate must give written consent to the sale of the immoveable property, as stated in section 47 of the Administration of Estates Act 66 of 1965. This was further confirmed in a 2011 judgment by the South Gauteng High Court [Schofield v Bontekoning (2011) JOL 27906 (GSJ)]. In this case, it was held that the executor is not empowered to sell the property and cannot pass transfer without the heirs written consent. However, should the seller pass away midway through a transfer, the written consent from heirs is waived and not applicable. This is found in the Deeds Registries Act 47 of 1937.
3. The Power of Attorney signed by the executor must be endorsed by the Masters Office for the Conveyancer to register the property to the third party (stated in section 42(2) of the Administration of Estates Act 66 of 1965), which can take anytime between 3 weeks to 3 months! This is to confirm there are no objections to such transfer. If the Masters Office does not grant permission by refusing to endorse the Power of Attorney, there is no legal binding agreement. This is why the Deed of Sale must include the sentence, “This sale is subject to the Consent of the Master of the High Court”.
4. The proceeds of the sale of the immoveable property are paid into the deceased estate’s banking account which needs to be opened by the executor or agent acting on behalf of the executor. Once the estate is finally wound-up, the heirs will receive their portion.

If either the seller or buyer dies before transfer, an executor must be appointed and the transfer documents must be re-signed. Where a buyer took out a bond, the sale will have to be cancelled as a deceased estate cannot have a bond. If it was a cash sale, the deceased estate will take transfer of the property and be dealt with subsequently according to the deceased’s will. This will, of course, also delay the transfer by many months.