A reader would like to know how to go about selling a property that forms part of her deceased father’s estate, which has not been wound up or administered in any way.
Although the parent died some years ago, the property is still registered in his name and is occupied by her two brothers.
She is concerned that one of the siblings might attempt to sell the property or take out a loan against it without the other siblings’ knowledge or consent.
See the reader’s question here.
The estate of the deceased parent must be administered in accordance with the provisions of the Administration of Estates Act.
It sets out the steps to be taken upon the death of any person and includes reporting the death, preparing an inventory of the property and dealing with the appointment of the executor.
The executor will proceed to liquidate and distribute the estate in accordance with the provisions of the deceased’s will. If there isn’t one, the estate will be distributed under the provisions of intestate succession.
The act does not allow any person to liquidate or distribute a deceased’s estate except under letters of executorship granted or signed and sealed under the act.
The process of registration of transfer of fixed property is a formal one largely dealt with in line with the provisions of the Alienation of Land Act. A sibling who is not authorised will not be able to sell the fixed property as the required formalities will not be met.
Similarly, that same sibling will not be able to register a bond or take out a loan using that fixed property as security as the consent of the registered title holder will be required to do so.
To facilitate the sale of the property and distribution of proceeds between the siblings, the estate would have to be administered in the correct manner by an appointed executor.
They will either sell the property in accordance with the circumstances or provisions of the deceased’s will or the executor will see to the registration of the transfer of the title deed into the names of the three siblings.
Then, as co-owners, they will be entitled to jointly make decisions as to what they wish to do about the fixed property.
The reader should begin by approaching the relevant master’s office to determine whether the death was properly reported and the necessary documentation lodged.
If an executor was appointed, that executor should be contacted to determine what progress, if any, was made in the administration of the estate of the deceased.
Should the siblings wish to deal with the fixed property in a certain way, it is possible that they can enter into a redistribution agreement.
This, for example, allows a single sibling to take ownership of the property and for the others to either forego a portion of their inheritance or to receive a cash sum to make up the value of the fixed property.
One can only imagine the future complications should one of the siblings enter into an informal sale or, alternatively, ostensibly encumber the fixed property as a result of using it as security for a loan.
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