Nelson Mandela’s widow Graca Machel’s decision to waive her right to 50% of her late husband’s estate raises questions on transferring properties in deceased estates.
Mandela and Machel were married in community of property so she could claim half the estimated R46-million estate he left. The will bequeathed R1.5-million to the NRM Family Trust; left a percentage of trust’s royalties to the African National Congress (ANC); bequeathed cash to personal staff, descendants, schools and organisations; and gave Machel ownership of four properties they owned in Mozambique. She also kept their cars and jewellery from their marriage and money in their bank accounts and investments.
An heir’s choice?
According to the Law Society of South Africa, beneficiaries can renounce any inheritance. The surviving spouse elects whether or not to take their share and forego the benefits of the will or allow the property sale and enjoy the benefits.
Smith Tabata Buchanan Boyes partner Stavros Anthias says there are several types of deceased estate transfers – transfers to the heir; simultaneous transfer to the heir and on to a third party; and sales directly from deceased estates.
Whenever someone dies, the Master of the High Court appoints an executor to administer the estate – collecting the assets; paying debts and distributing the inheritance with a liquidation and distribution account reflecting who gets what.
Property is only transferred once the Master gives the green light. This happens during the winding up of the estate, with simple ones taking up to a year.
Selling before the heirs inherit
Anthias says building on the transfer scenario, heirs can sell their inherited property before taking transfer. An uncomplicated chain sees the property transferred from the estate to the heir and on to the buyer simultaneously, but this is where caution raises its head as the sale can only happen with the Master’s consent.
“Before then the heir has inherited the property, but not yet the rights and buyers must be made aware of the clause stating the sale agreement is subject to the Master’s go-ahead,” he says.
An easier option is allowing the executor to sell the estate asset, signing the agreement on the estate’s behalf. Only the executor, appointed by the Master, can transact this sale and in line with the Alienation of Land Act, must be appointed in writing beforehand.
“This is a far swifter process, but can still be delayed by some of the legal red-tape best handled by conveyancers,” Anthias says.