How can my siblings and I sell our late mother’s house without an executor being appointed?

The long answer

To take the first question about how to sell the house without an executor being appointed:

It is simply not possible to sell the house before an executor is appointed. The executor is the only person authorised to represent the deceased estate, according to Section 13(1) of the Administration of Estates Act. 

As Fitzanne Estates says in a 15 July 2022 article, “No one is authorized to represent the deceased’s estate until an Executor is named.” This means, among other things, that no one may sign any documents relating to a transfer of an immovable property owned by the deceased, including a sale agreement.

Nobody has the legal authority to act on behalf of the estate before the Master has issued a letter of executorship. So, a person who has not been appointed in writing as the executor is not allowed to sign a sales agreement.

The Master has to give his consent to the sale of any property from a deceased estate before the sale can go through. The executor must establish the market value of the property and the Master must be sure that it is a fair sale that will not disadvantage the heirs before he will give his consent to it. 

There is a complex procedure to be followed by the executor when winding up a deceased estate.

Fitzanne goes on to explain what happens when a house from a deceased estate is sold: "… the Deceased Estate will bear the conveyancing costs including costs such as the Deeds Office fee. The Deceased Estate will also bear the cost of obtaining Rates and Levy Clearance Certificates, valid until after the anticipated date of registration. The transfer cannot be completed before the Liquidation and Distribution Accounts have laid for inspection by the general public."

"The Conveyancer handling the transfer will need to certify in terms of Section 42 (1) of the Administration of Estates Act 66 of 1965, that the transfer is in terms of the Liquidation and Distribution Account. The Liquidation and Distribution Account must first be approved by the Master of the High Court and have laid for inspection." (My emphasis)

"To confirm that the Master has no objections to the said transfer, the Conveyancer must obtain a Section 42 (2) Administration of Estates Act Certificate from the High Court where the Estate was reported."

So, it’s clear that the house cannot be sold before an executor is appointed. Now, what is to be done about the sibling who refuses to sign the nomination form for the executor and refuses to go and see the Master?

In my reading of the Administration of Estates Act, the Master does have the power to call the heirs to a meeting where he can decide to approve or decline to appoint people nominated. Perhaps the best thing to do is to make an appointment with the Master which all the siblings must attend. If the brother who is refusing to sign was willing to attend and put his reasons forward for not signing, that would obviously be best, but if he refuses, you could ask the Master to take steps to appoint the executor as it cannot be right or reasonable that the whole process of winding up the deceased estate is held up by one individual. I believe that it is within the Master’s power to go ahead and appoint an executor if he is satisfied that the nomination is a good one. 

And if you were not satisfied with how the Master was handling the situation, you could lay a complaint with the Chief Master, who supervises the work of the other Masters. 

E-mail: chiefmaster@justice.gov.za

Master of the High Court helpline: 012 315 1207

To answer your second question about whether you are entitled to less than your siblings as you did not have the same father as them, and your father had been married to your mother:

 No, as your mother died without a will, her deceased estate falls under the Intestate Succession Act. The order of inheritance under this Act is:

1. Spouses;

2. Descendants.

I am assuming there is no surviving spouse or life partner. So, as you and your siblings are all your mother’s biological children, you would inherit her estate in equal shares.

If you need to get legal advice, you could consult Legal Aid, which is a means-tested organisation that must assist you if you can’t afford a lawyer. These are Legal Aid’s contact details:

• Legal Aid Advice Line (Toll-free): 0800 110 110

• Please-Call-Me number: 079 835 7179

• Email: Communications2@legal-aid.co.za

Wishing you the best,
Athalie