Answer to a question from a reader

What happens if the seller of a house dies before the transfer has taken place?

The short answer

The transfer process is halted and the estate of the deceased seller must be reported.

The whole question

Dear Athalie

The person I was buying a house from died before the property could be transferred to my name. His family refuses to sign or obtain a letter of executorship. Is there any way that I can make sure that the property is correctly registered? We have already moved into the house.

The long answer

If the seller and the buyer entered into a binding legal contract by signing a valid Deed of Sale or Sale Agreement, the seller’s death does not mean that the Deed of Sale is now invalid. It is still a binding legal contract. But what it does mean is that the process of transfer is halted because the Power of Attorney signed by the seller to give the conveyancing attorney the right to go ahead with the transfer is no longer valid.

The process is halted and the estate of the deceased seller must be reported. It is not a choice but is legally required. The Master of the High Court will then appoint an executor. The Master gives a Letter of Executorship for estates valued at more than R250,000 and a Letter of Authority for estates valued at less than R250,000. The executor appointed must then sign a new Power of Attorney to proceed with the transfer.

Under Section 42(2) of the Administration of Estates Act 66 of 1965, the Master of the High Court must endorse the new Power of Attorney before any transfer can take place. The conveyancing attorney (the lawyer who actually registers the transfer at the Deeds Office) will need to obtain a Section 42(2) certificate from the Master of the High Court where the estate was reported to certify that the Master has no objection to the transfer.

Usually when a property owner dies, all the major heirs – the family members who stand to inherit – must agree that the property can be sold unless the estate is insolvent and the property has to be sold to pay debts. But if the seller dies after selling the property but before transfer has taken place, the agreement of the heirs is not needed provided there is a valid Deed of Sale that was signed by the seller and the buyer. 

If the seller’s family is objecting to the transfer, you may have to go to court to ensure that the Sale Agreement is enforced and the transfer goes through.

You could ask Legal Aid for assistance. Legal Aid is a means-tested organisation that must assist people that cannot afford a lawyer. These are their contact details:

  • Toll-free helpline for legal advice: 0800 110 110 (Monday to Thursday 8am – 4pm and Fridays 8am – 1pm)

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on Sept. 28, 2021, 4:07 p.m.

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Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.