A reader who has inherited a house after her husband passed away wants to know whether she has to transfer the property into her name before she can sell it.
She was married with an antenuptial contract in place and the house was registered in her late husband’s name. Her husband’s will states she is the sole beneficiary of his estate.
An antenuptial contract is typically entered into by spouses prior to marriage.
See the reader’s question here.
It regulates the marital system applicable to their respective estates, whether acquired before or after marriage.
Where a person is married with an antenuptial contract it typically means that they are married either out of community of property or out of community of property with the inclusion of the accrual system.
The contract becomes relevant in the case of death or divorce.
As the reader is the beneficiary of the entire estate, the relevance is that she is not the owner of an undivided half share as she would have been had they been married in community of property.
Thus the full property, and not just a portion of it, would require transfer.
Upon her husband’s passing the fixed property, with any other property forming part of his estate, would have fallen under the jurisdiction and control of the appointed executor.
It is the role of the executor to administer the estate and to deal with, inter alia, the fixed property.
As the reader is the sole heir, the fixed property would be transferred to her as part of the winding up of the estate.
It is possible for the property to be sold from the estate to a third-party purchaser.
The reader should take this matter up with the executor to ensure that nothing can prevent this from happening. For example, there could be a stipulation in the will.
As the executor is in control of the estate, he or she would have to sign the documentation necessary for the transfer of the property to the purchaser.
The executor will more than likely require our reader’s express instruction and consent to sell the fixed property directly out of the estate.
The reader will also need to confirm the terms and conditions for the sale to avoid any dispute or allegations at a later stage – for example the purchase price.
As it appears that the intention was to sell the property after being transferred to the wife, a sale directly from the estate would be the better option.
This will curtail additional costs involved in the transfer and cut down on the time it would take to effect two separate transactions – the transfer and then the sale.
There is always a danger of losing a potential purchaser should too much time pass from the moment a buyer expresses an interest in acquiring the property.
It is also possible that the purchase price could be affected by the delay.
On the other hand, such a delay could also result in a higher purchase price being attained.
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