Page 44 - Nexia SAB&T Property & Tax Guide 2022

the liabilities and transfer ownership of the residue to the beneficiaries. The remaining
provisions of the Administration of Estates Act regarding the administration of the
estate are not applicable. A Liquidation and Distribution Account does not need to be
drawn up, there is no requirement for advertisements or a Section 42(1) certificate
from the Conveyancer.

TRANSFER OF IMMOVABLE PROPERTY TO A SURVIVING SPOUSE:
◆ Where a deceased person was married out of community of property, there may be
specific provisions in his antenuptial contract in regard to his immovable property,
which may override his wishes in terms of his Last Will and Testament.
◆ Where a deceased person was married in community of property one half of his estate
is owned by his surviving spouse as a consequence of the marriage. The other half of
the immovable property will devolve either in terms of the deceased’s Last Will and
Testament or according to the rules of intestate succession (where applicable).
◆ If the deceased bequeathed his immovable property to his surviving spouse (either
by way of Last Will and Testament or by intestate succession), the following taxation
consequences are applicable:
❖ Estate duty – There is no estate duty payable on all property accruing to a surviving
spouse [Section 4q of the Estate Duty Act (45 of 1955)].
❖ Transfer duty: There is no transfer duty payable.
❖ Capital Gains Tax (CGT) consequences: are discussed on page 46.
SALE OF THE PROPERTY BY EXECUTOR TO A THIRD-PARTY PURCHASER
◆ The Executor can cause the immovable property in the estate to be marketed and sold,
before the Liquidation and Distribution Account has lain for inspection, where:
❖ The Executor deems it beneficial to do so (for liquidity in the estate).
❖ The deceased has specifically instructed that the property be sold in his Last Will
and Testament.
❖ The heirs or the beneficiary/s wish the property to be sold, or have entered into a
redistribution agreement to this effect, and the heirs have consented to the sale
and there is a clause in the agreement of sale stating that the sale is subject to the
approval of the Master of the High Court.
◆ The Executor would sign the sale agreement in his capacity as such and in due course
would sign the transfer documents, also in such capacity.
◆ The Conveyancer will need to obtain a Section 42(2) endorsement from the Master on
the original Power of Attorney to pass transfer, to confirm the Master’s approval.
◆ The costs of the transfer, including transfer duty, would be payable by the Purchaser.
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