Page 42 - Nexia SAB&T Property & Tax Guide 2022

DECEASED ESTATES AND IMMOVABLE PROPERTY

When a person, who owns immovable property registered in his name at the date of his death,
passes away, a number of scenarios may arise, as follows:

WHERE A PERSON DIES LEAVING A VALID LAST WILL AND TESTAMENT:
◆ A valid Last Will and Testament, in most cases, nominates an Executor to administer
the estate (or a Master’s Representative where the estate value is R250 000 or less).
◆ The immovable property will be transferred to the heir/s or beneficiaries as per the
provisions of the Last Will and Testament.
◆ If the property is subject to a mortgage bond, and where no mention is made of a bond
on the property, the Executor is required to settle the bond from the estate residue, and
only then is he able to transfer the property to the heirs or beneficiaries, simultaneously
with the cancellation of the bond.
◆ To protect any beneficiaries or heirs who are minors (under 18 years old), a testator
may wish to set up a testamentary trust in his Last Will and Testament.
◆ Where agricultural property is bequeathed, the testator needs to be aware of Section 3
of the Subdivision of Agricultural Land Act (70 of 1970), which prevents the subdivision
of agricultural land, and such land being registered in undivided shares in more
than one person’s name. This is especially relevant when the testator is considering
bequeathing agricultural land to more than one beneficiary.
◆ If a testator bequeaths his immovable property to a number of heirs in equal shares (or
otherwise), this may give rise to impracticalities due to the indivisibility of the bequest,
and may give rise to a redistribution agreement being drawn up between the heirs.
◆ To save costs and time, to protect beneficiaries/heirs, and ensure that a person’s
wishes are carried out, it is imperative that he executes a valid Last Will and Testament.
NO VALID LAST WILL AND TESTAMENT (INTESTATE):
Where a person dies without leaving a valid Last Will and Testament:
◆ The estate is intestate, and the Master of the High Court will appoint an Executor or
Master’s Representative after receiving nominations from interested parties. A parent,
surviving spouse or child of the testator may be appointed without having to provide
security for the proper performance of his duties. In all other cases, the Executor will
need to provide a bond of security to the Master – either issued by the Legal Practice
Council or a financial institution.
◆ The immovable property will be transferred to the heir/s or beneficiaries in terms of the
Intestate Succession Act (81 of 1987).
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