It is often the case in deceased estates, particularly in instances of intestate succession, that immovable property falls to be inherited by more than one heir. However, joint-ownership of property is often not ideal as it is possible that the heirs have an acrimonious relationship – if not before the death of the Testator then often after death.
Joint ownership can be avoided in the following ways:-
- The heirs can enter into a Redistribution Agreement in terms of which one of the heirs inherits the whole property and the other heir/s be paid the value of their inherited share in the property in cash.
- One of the heirs may purchase the property from the estate.
- The property may be sold from the estate to a third party.
If the heirs are unable to agree to the above, the Executor may apply for the consent of the Master of the High Court to sell the immovable property in terms of Section 47 of the Administration of Estate Act 66 of 1965.
An application for consideration by the Master in terms of Section 47 of the Act must contain the following information :-
- Reasons why the property should be sold;
- Short description of the property the Executor wishes to sell;
- An indication as to whether the estate is solvent;
- Method of sale of the property i.e. either by public auction or by private treaty, giving reasons as to why the specific method of sale is being sought;
- The written consent of the consenting heir/s:-
- In the absence of the consent of one or more heirs, the executor must submit proof of the following:
- A copy of a letter sent by registered post or served by the sheriff to the dissenting heir/s requesting their consent, giving reasons why the property should be sold;
- (In the event that there was still no consent) A second letter sent by registered post or served by the sheriff to the dissenting heir/s advising them of the Executor’s intention to make an application to the Master of the High Court in terms of Section 47, providing the date upon which such is to be made to the Master.
- If the sale is going to be by public auction, the Executor must attach a concept form of the advertisement and publicity intended for the sale.
The Master will consider the application and, if the application succeeds, will issue a directive to the effect that the Executor may proceed to sell the property without the consent of the heir/s.
