Do I need to transfer a deceased person's estate to my name in order to pay off its debt?

The long answer

Was your grandmother’s death reported to the Master of the High Court? All deaths are required to be reported within 14 days. Anyone who has the will (if there is one) and death certificate can report the death. A death certificate can only be obtained from Home Affairs (or if no Home Affairs, SAPS). 

Reporting a death creates a deceased estate which must be wound up – any debts must first be paid from the deceased estate and then property can be transferred. If the death is not reported, no steps can be taken to wind up the deceased estate, which includes transferring the title deed.

Once the death is reported, a deceased estate comes into being, and all the bank accounts and assets of the deceased estate are frozen. No one is allowed to withdraw money from the deceased’s bank accounts or deal with any of the assets like property without the permission of the Master. 

Below is a list of the documents you may need to report the death to the Master if the estate is valued at more than R250,000, as copied from the Department of Justice and Constitutional Development website. (If the property is valued at less than R250,000, the list differs slightly.) 

• Completed Death Notice (afr or eng) form - J294 

• Original or certified copy of the Death Certificate

• Original or certified copy of Marriage Certificate (if applicable) or acceptable proof of marriage, as requested by the Master. Marriage certificate/proof of registration of a customary marriage/ minutes of a family meeting where proof of registration of a customary marriage cannot be furnished /proof of religious marriage (Muslim or Hindu)/declaration confirming the existence of a same-sex life partnership (if applicable)

• A Declaration of Marriage by the Surviving Spouse indicating how the deceased was married

• All original wills and codicils or documents purporting to be such (if any)

• Completed Next-of-Kin Affidavit - J192 (if the deceased did not leave a valid will)

• Completed Inventory form - J243, showing all the assets of the deceased

• Nominations by the heirs for the appointment of an executor in the case of an intestate estate, or where no executor has been nominated in the will, or the nominated executor has died or declines the appointment.

• Completed Acceptance of Trust as Executor (eng) forms in duplicate by the person(s) nominated as executor(s) (form J190) plus a certified copy of the photo page of the executors ID document

• Undertaking and bond of security - J262 (unless the nominated executor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased)

If your grandmother did not leave a will, which is called dying intestate, her heirs should nominate someone they trust to be the Representative with the Letter of Authority or the Executor. If the property is valued at over R250,000, the Master will appoint an executor. If it is valued at under R250,000, the Master will appoint a representative to have a letter of authority. 

The process that a representative with a letter of authority must follow is much simpler than the process for an executor. But whether a representative or an executor is appointed, both have the responsibility and right to wind up the deceased estate, under the direction of the Master, which means paying all the debts and seeing that the rightful heirs inherit what is left, after the debts have been paid.   

If the Master considers that your grandmother’s property is indeed worth R350,000, the Master will appoint an executor. (I will lay out below all the steps that an executor must follow to wind up a deceased estate.) 

The executor must see that the municipal debt is paid off from the deceased estate. Ownership of the house cannot be transferred until the debt is paid. The executor (or representative) will have to ask for rates clearance figures from the municipality before registration of transfer can take place, because the Registrar of Deeds will not allow transfer to take place before all the rates and taxes have been paid. This payment is proved by the municipality issuing a municipal clearance certificate. 

The clearance figures will cover payments of all outstanding amounts for the last two years, as well as six months’ advance charges. SST Attorneys says that if there is enough money in the estate to make payment, it will not delay the winding up of the estate too much, but that if there is no cash available for payment, the heirs will have to pay the cash shortfall before the property can be transferred. 

If the Master appoints an executor or a representative, this is what they will have to do to wind up the deceased estate of your grandmother: They must open a new bank account in the name of “Estate of Late Ms X” so that your grandmother’s bank account is closed and the bank must transfer any money to the new “Estate Late Ms X” bank account. They will need to provide the bank with the following documents:

• Death Certificate

• Deceased’s ID

• Letter of Authority or Letter of Executorship

• Appointed Representative’s or Executor’s ID

Anyone can be an executor, but the Master of the High Court will only appoint an executor who is able to carry out all the administrative requirements. It is a position that carries a lot of responsibility. Being appointed as the executor or representative does not give that person any rights over the property. Their duty is to wind up the deceased estate, which means first paying all the debts and then seeing that the rightful heirs inherit.

Below follows a summary of the steps that an executor must take to wind up a deceased estate, taken from a helpful 2022 De Rebus article by Mohammed Moolla, a magistrate in Wynberg:

• Once the letter of executorship has been issued, the executor must put a notice for debtors and creditors in the Government Gazette and in one or more of the newspapers in the area in which the deceased person had lived for at least a year before they died. The notice calls on everybody who has a claim against the estate to lodge their claims not less than 30 days and not more than 3 months after the notice is published in the Government Gazette. Those who owe debts to the estate must pay them within the same period.

Liquidation and distribution account (L&D)

• After the last day of the notice period and within six months of the letter of executorship being issued, the executor must give the Master an account of how the estate must be liquidated and distributed, supported by vouchers.

Inspection of the accounts

• Once the Master has examined the account and issued a memorandum about any queries, the executor must again put a notice in the Government Gazette and one or more local newspapers, this time advertising that the Liquidation and Distribution Account (the L&D account) will lie open at the Master’s office for anyone who is interested in the estate to read.

Objections to the accounts

• Anyone interested in the estate can lodge an objection to the L&D account and must give their reasons for objecting. The Master will deliver these objections to the executor, who must reply to the Master regarding these objections within 14 days of receiving them. 

• The Master must consider the objection and the comments of the executor and if the Master finds the objection is well-founded or the L&D account is incorrect, he can instruct the executor to amend the account.

• Anyone who objects to the Master’s decision can apply within 30 days to the High Court for a court order to set the Master’s decision aside. 

Distribution of estate

• When that has all been done, the executor must immediately pay the creditors and distribute the estate amongst the heirs, according to the L&D account. The executor must give the Master all the receipts from creditors and heirs. 

The transfer of the title deeds is done by a lawyer called a conveyancing attorney, who will see to it that the Deeds Registrar signs the title deed in your name and a copy will be kept in the Deeds Office. 

No transfer duty (tax) is paid on transferring a property to a beneficiary, but the conveyancer must be paid for transferring or endorsing the title deeds into your name. Their fee depends on the value of the property on a sliding scale, and for an RDP house it could be between R7,000 and R8,000.

Generally, it should not take longer than six months to a year to wind up a deceased estate, but unfortunately, it is taking longer than that since Covid when the Master’s Offices became chaotic.

After many complaints about corruption, fraud and misconduct, the President and Justice Minister authorised the Special Investigating Unit (SIU) to launch an investigation in 2021 into the Master’s Office. The SIU raided and temporarily shut down all 15 of the Master’s offices in the country. 

Groundup reported on 20 November 2023 that the Justice Department had announced a rescue plan for the Master’s Office which aimed “to fix backlogs, improve digitisation, increase capacity, ensure standardisation and transparency, and to stop corruption in offices across the country”.  

So, although we hope that this rescue plan may be underway by now, it is likely that there will still be delays at the Master’s Offices.

If you find yourself in difficulty here, you could ask an organisation like the Black Sash which gives free paralegal advice, for assistance. These are their contact details:

Email: help@blacksash.org.za

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865

You could also ask Legal Aid for legal assistance. They are a means-tested organisation which must assist people who cannot afford a lawyer:

Tel: 0800 110 110 (Monday to Friday 7AM - 7PM) 

Please call me: 079 835 7179 

Email: communications2@legal-aid.co.za

Wishing you the best,
Athalie