This week the YourProperty expert considers a question from a recently widowed reader who has inherited the house but would like some clarity on the issue of transfer duty.
The reader explains that she and her late husband were married in community of property and that the house is fully paid up.
See the reader’s question here.
Although the process may be referred to as a “transfer” in layman’s terms, the title deed of the property is technically merely endorsed in these circumstances, says Sean Radue of Radue Attorneys in Port Elizabeth.
“Where a couple is married in community of property, there is generally no separation in the ownership of the property that comprises the entire communal estate.”
Radue says the spouses jointly own the property forming part of the estate in equal, undivided shares.
“This type of marital system generally comes about as a result of the parties not concluding an antenuptial contract.”
Spouses commonly conclude an antenuptial contract excluding community of property and either excluding or including the accrual system, he says.
“In the current instance, the house in question will be regarded as being owned by both spouses in equal, undivided half shares.”
Radue says this applies despite the fact that the house may be registered in her late husband’s name.
“Technically, it is a half share that has to be transferred not the entire property.”
If there is any bond on the property, despite it being fully paid up, it may so happen that a small, perhaps inconsequential, bond still exists, which will have to be settled as part of the administration process, he says.
According to him, the property transfer usually takes place towards the end of the process of winding up the administration of the deceased’s estate and is usually done by the conveyancing attorney appointed by the executor.
“The attorney will usually request certain documentation such as a copy of the will, any redistribution agreement where the will specified more than one heir to the property or estate, and the advertised liquidation and distribution account.”
Radue says a redistribution could have, for example, been concluded where the children, as heirs of the property, prefer to have the surviving spouse as the full owner.
“Where any bond exists over the property, the bond will usually be cancelled along with the transfer of the property.”
Costs payable will be the conveyancing attorney’s fees for handling the process but no transfer duties will be payable as is the case in a “normal” transfer scenario, he says.
“According to the Deeds Registries Act, if a property which forms an asset in a joint estate is registered in a deeds registry and the surviving spouse has lawfully acquired the deceased spouse’s share, the registrar will endorse the title deeds of the property on written application by the executor and surviving spouse.”
Radue says this endorsement will reflect that the surviving spouse is entitled to deal with the property as if he or she has taken formal transfer of the deceased’s share in the property.