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Author: Sandra

Understanding Delays in the Property Transfer Process in South Africa

Buying or selling a property is usually an exciting journey. However, it’s essential to acknowledge that this process is not without its challenges. In this article, we delve deep into the common reasons for delays in property transfers, shedding light on potential hurdles that may dampen the excitement of moving into your new property.

Common Reasons for Delays

Delays Caused by Incomplete or Inaccurate Deeds of Sale

One of the initial steps in any property transaction is the signing of the Deed of Sale. This document sets the tone for the entire process. Delays can ensue if it is incomplete or inaccurately completed, a responsibility that can fall on the buyer, seller, or real estate agent. This document is pivotal for the subsequent bond application process, and any issues must be resolved before moving forward.

Validity of the Deed of Sale

Ensuring that the Deed of Sale is valid and binding between parties is crucial. If not, a new valid contract must be established, further elongating the process.

Delays Due to Failure to Provide Personal Information or FICA Documents

Another stumbling block can be the failure to provide necessary personal information or FICA (Financial Intelligence Centre Act) documents promptly. Failure to do so can hinder the transaction’s progress, making cooperation from both parties vital.

Delays Related to Signing Bond and Transfer Documents

Timely signing of relevant bond and transfer documents is crucial. Any delays in this regard can have a cascading effect on the entire process, causing further setbacks.

Issues with Original Title Deed

The seller’s provision of the original title deed of the property is essential. However, if this document is lost or damaged, obtaining a duplicate from the Deeds Office can be a time-consuming process, sometimes taking up to three weeks.

Cash Shortfall

A smooth property transfer often hinges on cash flow. Delays can be triggered if buyers are unprepared for additional costs beyond the purchase price. Similarly, sellers may face cash flow issues if the selling price doesn’t cover an outstanding bond.

Transfer Duty Receipt and Bond Cancellation

A Transfer Duty receipt is a prerequisite for conveyancers to initiate the registration process. The buyer must pay the transfer costs to obtain this receipt. On the other hand, sellers must provide at least 90 days’ notice to cancel their existing bond, resulting in a potential three-month delay if this notice is not given.

Role of the Transferring Attorney

The transferring attorney plays a central role in coordinating various aspects of the transaction. This includes notifying mortgagees and initiating the bond cancellation process, which can be delayed due to notice periods.

Obtaining Certificates and Consents

Obtaining certificates, receipts, and consents can be time-consuming. These include rates clearance certificates, transfer duty receipts, and homeowners’ association consent, among others.

Delays Due to Property Inspections

Property inspections by professionals, such as plumbers or electricians, may uncover the need for significant repairs or improvements before certificates are issued, causing delays.

Delays in Deceased Estate Transactions

In transactions involving deceased estates, obtaining the consent of the Master of the High Court is a prerequisite. Delays may occur if certain requirements are not met.

Simultaneous Lodgement at the Deeds Office

To expedite the process, all attorneys involved must simultaneously lodge documents at the Deeds Office. This step requires approval from the mortgagee and consents for bond cancellation.

Deeds Office Time Frames

Time frames at the Deeds Office can vary, and they may also change during the course of a transaction. To stay informed, it’s advisable to consult your conveyancer for up-to-date information.

Understanding the intricacies and potential delays in the property transfer process is essential for a smoother experience. While delays are sometimes inevitable, careful planning, cooperation, and seeking professional guidance from a property law attorney can help navigate these hurdles effectively.

Safeguarding Inherited Assets in the Face of Insolvency

In today’s world, the spectre of insolvency looms over many individuals, especially after the blow that Covid-19 has brought down on South Africans. As such, it’s increasingly important to consider how your hard-earned assets will be protected in the event that your heirs face financial turmoil. 

What if one of your heirs, the intended recipient of your generosity, finds themselves declared insolvent or bankrupt? Can you protect the inheritance you intended for them from being claimed by their creditors?

The Role of Insolvency Clauses

The answer lies in the inclusion of insolvency clauses in your Will. These clauses play a pivotal role in determining the fate of inherited assets when an heir faces financial distress. But it’s important to note that drafting an effective insolvency clause isn’t straightforward; it requires careful consideration and precision.

What the Law Says

In South Africa, the law governing this matter is clear. As stated in “Mars: The Law of Insolvency in South Africa” (Ninth Edition, page 188), a testator cannot prevent an inheritance from forming part of the insolvent estate of their heir by merely stipulating that the bequest remains unenforceable during the period of sequestration.

To safeguard the inheritance effectively, the testator must create a “gift over” provision in their Will. For instance, the Will can specify that if the heir is declared an unrehabilitated insolvent at the time of the testator’s death, the bequest must be redirected to another person. 

Alternatively, the testator may grant the executors of the estate the discretion to divert the inheritance to a different beneficiary. In such cases, the insolvent heir will have no claim to the inheritance.

The Power of Repudiation

If a testator has not made provision for an heir’s insolvency in their Will, the heir’s only recourse to protect the inheritance is to repudiate it before it vests in their estate. However, this action may have unintended consequences, as it can result in the heir or residue heirs receiving specific assets or money that the testator did not necessarily intend for them to inherit.

The Importance of Inclusion

To ensure that your wishes and intentions are upheld during the administration of your estate, it is of paramount importance to include an insolvency clause in your Will. By doing so, you can proactively protect your assets and inheritance from the reach of creditors in case one of your beneficiaries faces financial hardship.

In conclusion, while insolvency can cast a shadow over even the best-laid estate plans, it’s crucial to remember that you have the power to protect your assets and ensure your intentions are respected. By including a carefully crafted insolvency clause in your Will, you can provide a safety net for your heirs and beneficiaries, shielding their inheritances from the clutches of financial adversity.

The Administration of an Insolvent Deceased Estate: When Liabilities Outweigh Assets

Dealing with the passing of a loved one is an emotionally challenging experience, and managing the administration of their estate can add complexity to an already difficult time. In some cases, the deceased’s estate may turn out to be insolvent, meaning that the debts and liabilities left behind outweigh the available assets. 

Understanding the Basics

Before we delve into the specifics, let’s clarify a few key terms:

  • Deceased Estate: This refers to the total assets, property, and liabilities left behind by a person after they pass away.
  • Insolvent Estate: An estate is considered insolvent when the debts and liabilities of the deceased surpass the total value of their assets. In simpler terms, there isn’t enough in the estate to cover all the debts.
  • Executor or Administrator: The person responsible for managing the deceased’s estate is typically called the executor (if there is a will) or administrator (if estate is below R250k). Their primary duty is to ensure that the estate is administered correctly and in accordance with the law.

The Steps in Administering an Insolvent Deceased Estate

  1. Identifying the Assets and Liabilities:
    1. The first step in the process is to identify all the assets and liabilities of the deceased. This includes their property, bank accounts, investments, debts, and any outstanding obligations.
  2. Notifying Creditors:
    1. Once the assets and liabilities are known, the executor must notify all creditors of the deceased about the death. Creditors then have a specified period to submit their claims against the estate.
  3. Prioritising Debts:
    1. In cases of insolvency, not all debts are treated equally. Some debts may have higher priority, such as administrative costs, and secured debts (e.g., a mortgage on a house). These will be settled first from the available assets.
  4. Selling Assets:
    1. If there are not enough liquid assets to cover the debts, the executor or administrator may need to sell some of the deceased’s assets to generate the necessary funds.
  5. Notifying Authorities and Creditors:
    1. According to Section 34 of the Administration of Estates Act (AEA), the executor is obligated to notify creditors, the South African Revenue Service (SARS), and the Master of the High Court if the estate’s liabilities surpass its assets. This notification outlines the estate’s status and informs creditors that unless the majority in number and value of all creditors instruct the executor in writing within a specified period (usually not less than 14 days) to surrender the estate under the Insolvency Act 1936 (Act 24 of 1936), the executor will proceed to liquidate all assets.
  6. Distribution of Proceeds:
    1. After selling all assets and collecting debts due to the estate, a Liquidation and Distribution Account (“L&D Account”) is drafted and lodged with the Master’s Office for confirmation. The L&D Account dictates the order of preference for distributing the proceeds according to the Insolvency Act.
  7. Payment to Creditors:
    1. The proceeds are used to pay off the estate’s debts. If there’s not enough money in the estate to cover all the debts, creditors may need to write off their claims.

Life Insurance Policies and Insolvent Estates

Life insurance policies held by the deceased for nominated beneficiaries do not become part of the insolvent estate. The proceeds from such policies belong to the beneficiaries and are not accessible to creditors of the deceased estate. However, if there are no nominated beneficiaries for a life policy, the payout becomes part of the deceased estate and is distributed to the estate’s creditors.

Avoiding Cash Shortfalls

Cash shortfalls in an estate can have negative consequences for beneficiaries. Ensuring that an estate has sufficient liquidity to cover administration costs and outstanding liabilities is essential. Solvency is not enough; estates need adequate cash reserves to settle immediate costs and liabilities without having to sell assets meant for inheritance.

In the event of a cash shortfall, the executor may need to sell non-liquid assets, such as properties, to raise funds. This can have unfortunate consequences, especially for surviving spouses and children who may lose important assets.

To avoid such complications, families should maintain a clear understanding of their estate’s assets and liabilities and consider using life insurance policies to cover potential cash shortfalls. Thorough estate planning with a professional financial adviser is crucial to ensure that loved ones are cared for and receive their intended inheritances without sacrificing essential assets.

In conclusion, the administration of an insolvent deceased estate is a complex process that requires careful attention to detail and adherence to legal requirements. Understanding the order of priority for debt settlement and the implications of insolvency on taxes and life insurance policies is essential. Thorough estate planning can help prevent unnecessary complications and protect the interests of beneficiaries during a challenging time.

What does it mean if the death certificate says “unnatural causes” – specific to reporting the estate

If the death certificate says “unnatural causes”, it means that the person died due to something other than natural causes. This has several implications for reporting the estate of the deceased, especially if the death occurred in South Africa.

One of the most important implications is that the death must be reported to the South African Police Service (SAPS) within 72 hours. The SAPS will then investigate the circumstances and manner of death and collect any evidence from the scene. The SAPS will also arrange for the removal of the body to a state mortuary for a post-mortem examination. A post-mortem examination is “a scientific and objective procedure that involves the systematic examination of the body tissues and organs by a pathologist”. The purpose of the post-mortem examination is to determine the exact cause of death and to provide a medical report that can be used for legal or administrative purposes. The post-mortem examination is required by South African law for all unnatural deaths and cannot be refused by the next of kin. The post-mortem examination may also reveal information that is relevant for reporting and administering the estate of the deceased, such as:

  • The identity of the deceased, if unknown or disputed
  • The date and time of death, if uncertain or disputed
  • The nature and extent of any injuries or diseases that affected the deceased
  • The presence of any substances or toxins in the body that may have contributed to or caused the death
  • The existence of any genetic or hereditary conditions that may affect the heirs or beneficiaries of the deceased

When a person dies, the cause of death is recorded on a death certificate by a medical practitioner or a traditional leader. The cause of death can be classified as natural or unnatural. Natural causes are those that result from disease or old age, while unnatural causes are those that result from external factors such as accidents, violence, poisoning, or suicide, and could also include any of the following:

  • Road traffic collisions involving cars, motorcycles, bicycles, pedestrians, or animals
  • Falls from heights, stairs, ladders, roofs, or windows
  • Drowning in pools, rivers, dams, or oceans
  • Fires or explosions in homes, workplaces, or public places
  • Electrocution by faulty wiring, appliances, or lightning
  • Poisoning by drugs, alcohol, chemicals, or plants
  • Animal attacks by dogs, snakes, bees, or wild animals
  • Natural disasters such as floods, earthquakes, landslides, or storms

If you do not specify that the death certificate says “unnatural causes” when reporting the estate to the Master of the High Court, you may encounter some problems or delays in finalising the estate. For example:

  • You may not have access to the medical report from the post-mortem examination, which may contain vital information for administering the estate
  • You may not be able to obtain a letter of executorship or authority from the Master until the SAPS has completed its investigation and issued a clearance certificate
  • You may not be able to claim any benefits or compensation from insurance policies, pension funds, or other sources that depend on the cause of death
  • You may face legal challenges or disputes from creditors, beneficiaries, or other parties who have an interest in the estate

To avoid these problems or delays, an unnatural death should be reported as soon as possible and all the relevant documents and information must be provided to the Master of the High Court without avail. You should also consult with a professional legal service that specialises in estate administration and planning, such as AED Attorneys.

How can AED Attorneys help you?

Reporting an unnatural death estate can be a complex and stressful process. If you are a new owner of a property that belonged to someone who died due to unnatural causes, you may face some challenges in reporting and administering their estate. You may also encounter some emotional distress and trauma as a result of their death.

AED Attorneys can help you with:

  • Reporting an unnatural death estate to the Master of the High Court and the SAPS
  • Obtaining a letter of executorship or authority from the Master
  • Claiming any benefits or compensation from insurance policies, pension funds, or other sources
  • Dealing with any legal challenges or disputes from creditors, beneficiaries, or other parties
  • Finalising and distributing the estate in accordance with the law and the wishes of the deceased

An unnatural death can complicate your inheritance or ownership of a property. AED Attorneys understands these implications, tax and financial consequences and other considerations. We have experience of the emotional and psychological impact, and offer the legal support that is essential in the event of an unnatural death estate.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.