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Got fixed property? Get a will!

A home is the biggest financial asset most people will ever possess, and what happens to a home when the owner dies will depend on whether or not the owner had a will.

“Finalising the estate of a deceased relative is a fairly complex process, which is made infinitely more costly and time consuming if the person died intestate – without a valid will. This is especially the case if a significant asset such as a property is involved,” says Bruce Swain, MD of Leapfrog Property Group.

“Even if you have written a will it may not be valid. To ensure that your final testament is legally binding, it needs to meet the requirements outlined in the Wills Act, No 7 of 1953.

According to the act, three conditions need to be met for a will to be valid the writer of the will must be over 16 years old, the will must be in writing and each page, including the last one, has to be signed by the testator. The final page also needs to be signed by two competent witnesses, who must be at least 14 years old. All witnesses need to be present at the same time at the signing of the will and cannot be beneficiaries of the will.

“I strongly recommend that home owners ask an expert attorney to draft their will, stipulating who is to inherit, appointing an executor, and to advise as to possible estate duties, capital gains tax and the cost of finalising the estate so that they can prepare properly – ensuring that their will is valid, their dependants are provided for and the costs determined, and limited where possible,” says Swain.

Each estate is different, but there are situations where no capital gains tax or even estate duty will apply and it’s best to consult an attorney to do proper estate planning – sooner rather than later. Remember, if this isn’t done properly you will not be able to make amends afterwards, so it’s important to sort things out at the start for the sake of the people you leave behind.”

If you have indicated who will inherit then the matter is simple unless the will is contested. However, if no valid will is in existence and the estate is solvent, the assets will be disposed of in accordance with the Intestate Succession Act, No 81 of 1987. If no provision has been made for taxes – and for limiting them where possible – the burden on the inheritors could be significant.

It might be that assets need to be sold to finalise the outstanding debt in the estate, or that the heirs want to sell them.

Law firm Smith Tabata Buchanan Boyes (STBB) says that if a home owner has drafted a valid will and appointed an executor to the estate the nominated executor must first establish his or her authority to act on behalf of the estate by applying for and obtaining letters of executorship from the Master of the High Court.

“Establishing an executor’s authority can take some time, depending on the case load at the High Court, but if you haven’t nominated one your heirs will need to wait for the court to appoint an executor, which can cause significant further delays,” says Swain.

It’s important to note that property in a deceased estate cannot be sold before the executor has been formally appointed by the Master of the High Court. STBB says that no matter how great the opportunity, a purported sale will not be valid if the executor signing off has not been appointed, nor will a later signature ratify the sale.

In addition, the written consent of all heirs must be obtained when selling property belonging to a deceased estate – upon the consent of the Master of the High Court.

Normally, an executor will first determine what, if any outstanding debt the deceased had at the time of death. This debt has to be settled first, and this may well necessitate the sale of the family home.

“I would strongly advise home owners to share all the relevant documentation (from the will to bank statements and the like) with a trusted family member or executor, so they know where all relevant documents are and how to proceed.”

“If the property needs to be sold this will speed up the process considerably. However, even with everything in place, heirs need to know that concluding an estate can be a lengthy process and that it will be some time before the executor will be able to proceed on a property sale, if needed.” 

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