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Can a property be sold by the executor of an estate, without the consent of the heirs?
01 March 2019  | Gerda Janse van Rensburg

In a perfect world each person should have a will that states what should happen with his belongings after his passing; however people are often so scared to talk about death that they slip on this important part of life.  You only have one way of having your will done after your death, and that is to have a proper will drafted while still able to.

So, to answer the question, let’s presume that the estate of Mr X has a cash shortfall of R 200 000 and that the only asset in the estate is the property that he has left behind.  In his will he gave instruction that the house must be inherited by his wife. 

The sale agreement must be subject to the prior written permission of the heirs in the estate. This is a legal requirement and is lodged simultaneously with the application to obtain the approval of the Master.

But back to the example above. If the cash shortfall of the estate can not be paid in by the heirs, the executor might have no other choice than to sell the house to finalize the estate.  However, this is not the ideal and once again proof of why it is of the utmost importance for people to sit down with someone to look at their financial stance in case of death.  If the property has to be sold, the executor will sign the deed of sale on behalf of the estate and this will be deemed as a valid and legal will.  The executor will inform the master of the reasons for his decision and the master will accept or decline depending on the information  received.

Something else to remember is to include a special condition in the deed of sale, stating that the sale is subject to the approval of the Master.

The extra requirements of a sale out of a deceased estate inevitably mean that there will be additional delays, both in concluding the sale agreement and taking transfer at the Deeds Office.  

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