• 057 916 6666
  • nvr@nvrlaw.co.za
  • Monday to Thursday 08:00 - 17:00 | Friday 08:00 - 16:30

News & Resources

Transfering Property From A Deceased Estate
13 September 2018  | Gerda Janse van Rensburg

Nobody likes to dwell on the matter of their own demise. Unfortunately, it is something that none of us can escape and ignoring the consequences can make things that much harder for those left behind.

If  you die without drafting a will, an executor will be appointed and he will distribute your assets in terms of the intestate succession.  When this law is enforced when dealing with immovable property, it can lead to a lot of frustration to the family of the deceased, as no clear instructions were left behind.

It is important to take into consideration the manner in which you were married, when handling your estate and drafting of your will.   If you are married in community of property, you only own half of all assets registered in your name and your spouse the other half share. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present conflict between the parties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalize the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

If you are involved in a co-ownership situation, you may wish to address the issue of occupation rights for your surviving spouse in your will. Co-ownership, like many other aspects relating to wills can be tricky which is why it’s best to involve the services of a professional when drafting a will.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

· State where your title deeds are kept and record any outstanding bonds and all insurance

· File up-to-date rates and taxes receipts · Record details of the leases on any property you have

· State who collects your rent

· State who compiles your yearly accounts

· State where your water, lights and refuse deposit receipts are kept  

It is also important to remember that if you have a bond over your property, whether you have life insurance or not will have a huge impact on your estate and the subsequent transfer of your immovable property.   Also keep in mind, that if the bond is not settled the surviving joint bond holder will have to go to their bank and apply for an endorsement to take over the balance of the loan on their own.

Also keep in mind that  no transfer duty is payable on property bequeathed to heirs. This applies even when the heirs agree to distribute the property or properties amongst themselves, in a different way to that envisaged by the testator. Conveyancing fees are however still payable. If the heirs decide to sell the property (out of the estate) to an outsider, transfer duty will then apply – but in most cases will be paid for by the buyer.

Simply put, there’s no excuse not to have a will. You can speak to your bank or your attorney about drawing up a will that they will hold on your behalf. Doing so will ensure that everything in your estate goes to the right people timeously, and without extra cost, which will prevent additional heartache and worry during a very stressful time.  

With acknowledgement of extracts from : https://www.privateproperty.co.za/advice/property/articles/death-andproperty/3231

Related Services: