Answer to a question from a reader

How can I check if there are any disputes involving the property I am buying and is a letter of executorship enough proof of ownership?

The short answer

A letter of executorship is not enough proof on its own.

The whole question

I am in the process of buying a property and I have received a letter of executorship. I am concerned whether there are any disputes related to the property. How do I go about checking for disputes? Do I need to see any documents in addition to the letter of executorship?

The long answer

Thank you for your email asking how you can check if there are any disputes involving the property you are buying, and if a letter of executorship is valid on its own or if you need to see additional documents.

A letter of executorship is given to the nominated executor of a deceased estate by the Master of the High Court. This gives the nominated executor the legal right to wind up a deceased estate, which may include immoveable property like a house. The executor himself/herself is not the owner of the property.

If the deceased owner left a will, the property will belong to the person/s named in the will. If there was no will, the estate is administered in terms of the Intestate Succession Act, which lays down how the estate is divided between surviving spouses and/or heirs.

When the Master of the High Court is satisfied that all debts have been paid and that all heirs have been identified and that the executor knows what is owed to them from the estate, he will direct the immoveable property (the house) to be transferred. The property can either be transferred directly to the heir/s, or be sold and the money distributed among the heirs, if they agree to that, or if there is not enough money to pay all the outstanding debts. In that case the profits from the sale will be used to pay off the debts and what is left over will be distributed to the heirs. If the heirs are under 18 years of age, the Master must give permission for the house to be sold.       

The property must be sold at market value and the Master will require two independent evaluations to make sure of that. The executor must engage a conveyancing attorney who draws up the actual transfer documents. When all the documents have been drawn up by the conveyancing attorney and signed by the executor, the conveyancing attorney must submit to the Master’s office the Power of Attorney authorising the transfer of the property, together with a certified copy of the deed of sale and the two independent evaluations. If the Master is satisfied that the sale is in order, he will put a stamp on the Power of Attorney which tells the Deeds Office that the sale has been endorsed by the Master. 

Perhaps you should check that the executor has followed all the steps outlined above, to make sure that the sale is in order and that the conveyancing attorney is transferring the property into your name so that you receive the title deeds when you have bought the house. Without the title deeds you are not the legal owner of the house.

Answered on Feb. 5, 2020, 3:20 p.m.

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