How to avoid estate disputes

Dealing with the aftermath of a loved one’s passing is never easy, and disputes over the distribution of their estate can further complicate an already challenging situation.

Estate disputes and litigation are not uncommon, but understanding the common issues that may arise and knowing how to resolve conflicts can help you navigate these challenges with greater ease.

Common estate disputes

Validity of the will

One of the most common sources of estate disputes is the validity of the deceased’s will. Family members may challenge the authenticity of the will, alleging that it was made under duress, coercion or undue influence.

Inheritance claims

Disputes may arise over who is entitled to inherit from the deceased’s estate, especially if there are multiple heirs or beneficiaries with competing claims. This can be particularly contentious in blended families or cases where there are estranged relatives.

Executorship disputes

Conflict may arise over the appointment or actions of the executor responsible for administering the estate. Beneficiaries may question the executor’s decisions or accuse them of misconduct or mismanagement.

Asset distribution

Disputes can also arise over the distribution of specific assets or properties, particularly if there are disagreements about how they should be divided among the beneficiaries.

Disputes among heirs

Family members may also disagree over various aspects of the estate administration process, such as the valuation of assets, the payment of debts and taxes, or the allocation of expenses.

How to resolve estate-related conflicts


Mediation is a voluntary and confidential process in which a neutral third party helps disputing parties reach a mutually acceptable resolution. Mediation is usually a less adversarial and a less costly alternative to litigation and can help preserve family relationships.


Family members can attempt to resolve disputes through direct negotiation, either independently or with the assistance of legal counsel. Negotiation allows parties to discuss their concerns and interests openly and work together to find a compromise.


Arbitration involves submitting a dispute to a neutral arbitrator who hears both sides of the case and renders a binding decision. Arbitration can be faster and more flexible than traditional litigation, but parties must agree to abide by the arbitrator’s decision.


In cases where disputes cannot be resolved through alternative means, parties may resort to litigation, which involves bringing the matter before a court for resolution. Litigation can be costly and time-consuming, but it may be necessary to protect one’s rights and interests.

Seeking legal advice

Estate disputes and litigation can be emotionally taxing and financially burdensome for all parties involved. Regardless of the chosen dispute resolution method, it’s essential for parties involved in estate disputes to seek legal advice from experienced estate litigation attorneys.

Contact us if you find yourself in a dispute over a deceased estate. We can provide guidance on the best way forward to help you resolve the dispute.

The importance of estate planning

Estate planning is a crucial aspect of financial management. Taking the time to create a comprehensive estate plan is essential for ensuring that your assets are distributed according to your wishes and that your loved ones are taken care of after you’re gone.

What is estate planning?

Estate planning is the process of managing and distributing your assets after your death or incapacitation. It involves making decisions about how your property, finances, and personal belongings will be handled and ensuring that your wishes are legally documented and carried out.

Protecting your loved ones

Estate planning is how you provide for your loved ones after your death. By creating a will or trust, you can specify how your assets should be distributed and ensure that your family members are taken care of financially.

Minimising family disputes

Without clear instructions in place, disagreements among family members can arise regarding the distribution of assets. Estate planning can help minimise the potential for disputes by outlining your wishes in writing and appointing executors or trustees to oversee the process.

Avoiding probate delays

Proper estate planning can help streamline the probate process, the legal procedure for validating a will and distributing assets. By creating a trust or using other estate planning tools, you can potentially avoid probate altogether, saving time and money for your beneficiaries.

Planning for incapacity

Estate planning isn’t just about what happens after you die. It also involves planning for possible incapacity during your lifetime. Through documents like a durable power of attorney and healthcare directives, you can appoint trusted individuals to make financial and medical decisions on your behalf if you become unable to do so.

Reducing estate taxes

Strategic estate planning can help minimise estate taxes, ensuring that more of your assets are passed on to your beneficiaries rather than being lost to taxes. Techniques such as gifting, creating trusts, and utilising tax-saving strategies can help reduce the tax burden on your estate.

Protecting business assets

If you own a business, estate planning is essential ensuring its continuity and protecting its assets. By creating a succession plan and implementing strategies to transfer ownership or control, you can ensure that your business continues to thrive after you’re no longer involved.

Getting started with estate planning

Create a will or trust

The foundation of any estate plan is a will or a trust. A will describes how your assets will be distributed after you die. A trust is a legal arrangement by which a trustee manages assets on behalf of beneficiaries.

Power of attorney

A power of attorney gives someone permission to make decisions on your behalf if you become incapacitated.

Living will

A living will outlines your wishes for medical treatment if you are unable to make decisions for yourself. It is a legal document that provides direction to healthcare professionals and takes the burden off your relatives to make critical decisions during a time of emotional distress.

Review and update regularly

Estate planning is not a one-time event. It’s an ongoing process that should be reviewed and updated regularly to reflect changes in your life circumstances or financial situation.

Consider tax planning

Depending on the size and complexity of your estate, tax planning may be an important aspect of your estate plan. Consult with a tax professional or estate planning attorney to explore tax-saving strategies and ensure that your plan is optimised.

Communicate with your family

While estate planning is a personal matter, it’s essential to communicate your wishes with your family members to avoid surprises or misunderstandings later.

How we can help you

Estate planning is a critical component of financial planning to protect you and your loved ones, minimise potential conflicts, and ensure that your assets are distributed according to your wishes.

Let us assist you in creating a solid estate plan with structures that focus on asset protection and estate duty minimisation.

What is an executor of a deceased estate?

An executor is an individual appointed by the deceased in their will or by the Master of the High Court to administer their estate after they pass away. Executors play a crucial role in ensuring that the deceased’s wishes are carried out and that the estate is settled efficiently and in accordance with the law.

By understanding the responsibilities and duties associated with executorship, individuals can approach this role with confidence, knowing that they are fulfilling their obligations to the deceased and their beneficiaries.

The role of an executor

Gathering assets

One of the primary responsibilities of an executor is to identify and gather all assets belonging to the deceased estate. This may include bank accounts, investments, real estate, vehicles, personal belongings, and any other property owned by the deceased.

Paying debts and expenses

Executors are tasked with settling any outstanding debts and expenses owed by the deceased estate. This can include funeral costs, outstanding bills, taxes, and other liabilities.

Managing the estate

Executors are responsible for managing the deceased estate during the administration process. This may involve maintaining property, handling investments, and taking care of any ongoing financial matters until the estate is fully administered.

Distributing assets

Once all debts and expenses have been settled, the executor is responsible for distributing the remaining assets to the beneficiaries as outlined in the deceased’s will or, if there is no will, according to the laws of intestate succession.

Legal responsibilities and duties of an executor

Acting in good faith

Executors are legally obligated to act in the best interests of the deceased estate and its beneficiaries. This includes acting honestly, diligently, and without any conflicts of interest.

Following the will

If the deceased left a valid will, the executor must follow its instructions to the best of their ability. This may involve interpreting the terms of the will, carrying out specific bequests, and ensuring that assets are distributed according to the deceased’s wishes.

Complying with the law

Executors must comply with all relevant laws and regulations governing the administration of estates. This includes obtaining the necessary legal documents, filing tax returns, and adhering to deadlines set by the Master of the High Court.

Keeping accurate records

Executors are required to keep detailed records of all transactions and communications related to the administration of the estate. This includes documenting asset valuations, expenses paid, and any correspondence with beneficiaries or creditors.

Accounting to beneficiaries

Executors have a duty to provide regular updates and accountings to the beneficiaries of the estate, keeping them informed of the progress of the administration process and any significant developments.

How we can help you

Contact us if you have been appointed as the executor of someone’s estate and need help.

We can assist you throughout the process and will ensure all assets are distributed in accordance with the law and the wishes of the deceased.

The step-by-step process of administering a deceased estate

Navigating the legal intricacies of a deceased estate is complex and time-consuming. Here’s an outline of the process.

Reporting the deceased estate

The death must be reported to the Master of the High Court within a specified time, usually within 14 days, in the jurisdiction where the deceased resided.  The documentation must include the original will, certified copies of the death certificate, the deceased’s identity document, and, if applicable, the marriage certificate and antenuptial contract.

Obtaining Letters of Executorship

Once the estate has been reported, the executor must apply to the Master of the High Court for Letters of Executorship, which grant the executor the legal authority to administer the estate.

Section 29 advertisement

Upon receipt of the Letters of Executorship, the executor must publish a notice to creditors in the Government Gazette and in local newspapers, so that persons with claims against the estate can lodge them within a specified time.

Assessing assets and liabilities

The executor is responsible for identifying, collecting, valuing, and taking control of all assets of the deceased estate. This may include bank accounts, investments, property, vehicles, and personal belongings.

If the deceased was a taxpayer, the executor notifies SARS to establish whether there is any outstanding tax liability and, if necessary, liaise with the deceased’s tax advisor to file outstanding returns.

The executor must also liaise with the deceased’s banks to close accounts and open a new bank account in the name of the estate.

Liquidation and Distribution Account

Once all assets and liabilities are identified, the executor prepares a Liquidation and Distribution Account and submits it to the Master for approval. The L&D Account must be submitted within six months and sets out how the assets will be distributed to the beneficiaries. It also includes any income and expenditure the estate may have incurred.

If the Master raises queries, the executor may have to lodge additional documents or a revised L&D Account. If there are no queries, the Master will give permission to advertise the account as lying for inspection.

Together with the L&D Account, the executor submits an estate duty return to the Master. If the value of the estate is over the estate duty threshold, the executor must also submit an estate duty return to SARS. Usually, SARS then performs an estate duty audit, which can delay the Master granting permission to advertise the L&D Account lying for inspection.

Section 35 advertisement

Once the L&D Account has been approved by the Master, the executor must publish a notice to creditors in the Government Gazette and in local newspapers, that sets out the inspection period during which the account will be available for inspection at the Master’s office. If no objections are lodged during this period, the executor can apply to the Master for authorisation to distribute the estate.

Paying debts and taxes

Before distributing assets to the beneficiaries, the executor must settle any outstanding debts and taxes owed by the deceased estate.

Distributing assets to beneficiaries

Once all debts and taxes have been paid, the executor can distribute the remaining assets to the beneficiaries as outlined in the deceased’s will or according to the laws of intestate succession, if there is no will.

Then the executor closes the estate bank account and applies to the Master for a filing slip to be able to close the file. This includes an affidavit to confirm that all creditors and beneficiaries have been paid, and proof of the transfer of any immovable property.

How we can help you

Contact us if you need help with the administration of a deceased estate. We can handle the entire process, from the appointment of an executor to the distribution of assets. Our conveyancing team is well-equipped to handle any property transfers from deceased estates to beneficiaries.

We will ensure all assets are distributed in accordance with the law and the wishes of the deceased and assist in resolving any disputes that may arise.

Administration of deceased estates: An overview

Losing a loved one is never easy, and dealing with their affairs can be overwhelming, especially when it comes to navigating the legal aspects of their estate.

In South Africa, specific laws and regulations govern the distribution of assets and settlement of debts after someone passes away. Here’s an overview, outlining the relevant legislation and the terminology involved.

The legal framework

The primary legislation governing deceased estates in South Africa is the Administration of Estates Act 66 of 1965. This act provides the legal framework for the administration and distribution of estates of deceased persons. The Wills Act 7 of 1953 regulates the validity and execution of wills, which play a crucial role in the estate administration process.

What is the administration of a deceased estate?

Deceased estate administration involves the process that an executor must follow to manage the estate of the person who has died. In South Africa, this process is governed by the Master of the High Court and usually starts with the appointment of an executor in terms of the deceased person’s will. If the deceased did not have a will, the heirs may appoint an executor.

The executor is responsible for managing the assets, liabilities, and affairs of the deceased estate, and ultimately for distributing the assets to the heirs or beneficiaries in accordance with the law or the wishes of the deceased person.

This involves the reporting of the deceased estate, collecting the property of the deceased estate, paying the debts due by the deceased estate, and distributing the remaining property to the heirs.

The executor and executorship

The executor of the deceased estate is appointed to administer the estate and to ensure that the deceased’s wishes, as outlined in their will, are carried out.

If there is no will or if the appointed executor is unable or unwilling to act, the Master of the High Court may appoint an executor. The executor is responsible for various tasks, including gathering assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.

The Master of the High Court

The Master appoints the executor, approves the Liquidation and Distribution Account, and gives permission for the assets to be distributed in terms of the L&D Account. The process can take anywhere from a few months to a couple of years. It all depends on the complexity and possible delays caused by third parties, such as SARS, other creditors, or disputes among the beneficiaries.

In our next blog, we’ll outline the step-by-step process of administering a deceased estate.

How to make sure your will is valid

Drafting a will is an essential step in estate planning, allowing you to specify how you want your assets to be distributed after your death.

For a will to be legally valid, it must meet certain requirements and withstand potential challenges to its validity. While challenges to the validity of a will are not uncommon, taking proactive steps to address potential vulnerabilities can help safeguard the integrity of the document and ensure that the testator’s wishes are honoured.

Common challenges to will validity

Lack of testamentary capacity

One of the most common challenges is the allegation that the testator (the person making the will) lacked the mental capacity to understand the consequences of their actions at the time the will was made. This may arise if the testator was suffering from dementia, mental illness, or undue influence at the time of execution.

Undue influence

Another challenge is the assertion that the testator was unduly influenced by another person to make certain provisions in their will that are not reflective of their true wishes. This can occur when a person in a position of power or authority over the testator exerts pressure or manipulation to benefit themselves or others.

Forgery or fraud

Wills may also be challenged on the grounds of forgery or fraud if there is evidence to suggest that the testator’s signature or the contents of the will were altered or fabricated without their knowledge or consent.

Improper execution

Wills must be executed in accordance with the formalities prescribed by law to be considered valid. Common issues related to improper execution include the absence of witnesses, failure to sign the will in the presence of witnesses, or failure to meet other formal requirements specified by law.

Solutions to address these challenges

Ensure testamentary capacity

To address challenges related to testamentary capacity, it’s essential for the testator to execute their will when they are of sound mind and understand the nature and consequences of their actions. Seeking the advice of a medical professional or obtaining a capacity assessment can help provide evidence of the testator’s mental capacity at the time of execution.

Document intentions and decision-making process

To mitigate claims of undue influence, it’s important for the testator to document their intentions and decision-making process when drafting their will. Keeping records of discussions with family members or trusted advisors and maintaining independence in decision-making can help demonstrate that the will reflects the testator’s true wishes.

Use professional assistance

Engaging the services of a qualified attorney experienced in estate planning can help ensure that the will is drafted and executed properly, reducing the risk of challenges related to forgery, fraud, or improper execution. An attorney can also provide guidance on potential areas of vulnerability and advise on strategies to address them.

Witnesses and notary public

To ensure proper execution of the will, it’s crucial to have witnesses present at the time of signing who can attest to the testator’s identity and capacity. Additionally, having the will notarised by a notary public can provide an extra layer of authentication and help deter challenges to its validity.

Regular updates and reviews

Finally, regularly reviewing and updating of the will as circumstances change can help ensure that it remains current and reflects the testator’s wishes. This can help prevent challenges based on outdated or incomplete provisions and provide clarity for the beneficiaries.

How we can help you

Contact us if you are not sure whether your existing will is legally valid. If it isn’t, our legal professionals can assist you to ensure that your will is drafted to reflect your wishes regarding the distribution of your assets.

What happens if you don’t have a will when you die?

Intestate succession is a legal concept that comes into play when a person passes away without leaving a valid will. In South Africa, the Intestate Succession Act 81 of 1987 governs the distribution of assets in such cases, ensuring that the deceased’s estate is distributed in a fair and orderly manner. Let’s explore the rules of intestate succession and how assets are distributed when there is no valid will.

Rules of intestate succession in South Africa

Spouse and descendants

If the deceased is survived by a spouse and descendants (children or grandchildren), the spouse is entitled to a certain portion of the estate, while the remaining assets are divided among the descendants. The spouse’s share varies depending on whether the deceased had children or grandchildren.

Spouse and no descendants

If the deceased is survived by a spouse but has no descendants, the spouse is entitled to the entire estate.

Descendants and no spouse

If the deceased is not survived by a spouse but has descendants, the estate is divided equally among the descendants.


If the deceased is not survived by a spouse or descendants, the estate is divided equally between the deceased’s parents. If only one parent survives, they inherit the entire estate.


If the deceased is not survived by a spouse, descendants, or parents, the estate is divided equally among the deceased’s siblings. If any siblings have predeceased the deceased, their share is divided equally among their descendants.

No surviving relatives

If the deceased is not survived by any close relatives, the estate will be given to the state.

Distribution of assets in intestate succession

When a person dies intestate, the distribution of their assets is determined by the rules of intestate succession outlined above. The estate is administered by the Master of the High Court, who appoints an executor to handle the process.

The executor is responsible for identifying and gathering the deceased’s assets, paying any outstanding debts and taxes, and distributing the remaining assets to the heirs according to the rules of intestate succession.

Assets are distributed in accordance with the legal hierarchy of beneficiaries outlined in the intestate succession laws. The administrator must follow this hierarchy to ensure that assets are distributed correctly and fairly among the deceased’s surviving relatives.

Importance of estate planning

Intestate succession highlights the importance of estate planning. Without a valid will in place, the distribution of assets may not align with the deceased’s wishes or the needs of their loved ones. By drafting a will, individuals can specify how they want their assets to be distributed and ensure that their wishes are carried out after their death.

Estate planning also allows individuals to appoint executors and guardians for their minor children, make provisions for the care of dependents, and minimise estate taxes and administrative costs.

How we can help you

Contact us to assist you with estate planning and drafting a valid and binding will, so you can have peace of mind knowing that your affairs are in order and that your estate is distributed according to your wishes.

Do you have a valid will?

Drafting a last will and testament is a crucial step in ensuring that your wishes are carried out after you pass away. Having a valid will in place can provide peace of mind and clarity for your loved ones during a challenging time.

Why drafting a will is important

Ensuring your wishes are honoured

In a will you can stipulate how you want your assets to be distributed after your death. Without a will, the distribution of your estate will be governed by intestate succession laws, which may not align with your wishes.

Providing for your loved ones

A will enables you to provide for your loved ones, including your spouse, children, and other dependents. You can stipulate who should inherit specific assets or receive financial support, ensuring that they are taken care of after you’re gone.

Minimising family disputes

Clear instructions in a will can help prevent disputes among family members over the distribution of assets. By outlining your wishes in writing, you can minimise the potential for conflict and ensure that your estate is settled smoothly.

Appointing guardians

If you have minor children, a will allows you to designate guardians who will be responsible for their care in the event of your death. This ensures that your children are placed in the care of individuals you trust and who share your values.

Key elements of a valid will

Identification of the testator

The will should begin with your full legal name and address, clearly identifying you as the testator (the person making the will). A testator must be older than 16 years.

Appointment of an executor

You should appoint an executor to administer your estate and carry out the instructions in your will. Choose someone who is trustworthy and capable of handling the responsibilities associated with executorship.

Distribution of assets

Clearly outline how you want your assets to be distributed after your death. Specify who should inherit specific items or properties and include alternate beneficiaries in case your primary beneficiaries predecease you.

Residuary clause

Include a residuary clause to address any assets or property that are not specifically mentioned in the will. This way all your assets are accounted for and distributed according to your wishes.

Funeral and burial wishes

You may include instructions regarding your funeral arrangements and any specific wishes you have regarding your burial or cremation.

Revocation clause

Include a clause explicitly revoking any previous wills or testamentary documents that you have made, ensuring that your current will takes precedence.

Witnesses and signatures

In South Africa, a will must be signed by the testator in the presence of two competent witnesses who are older than 14 years. They must sign in the presence of the testator and each other. People named as heirs, guardians, executors, or trustees (and their spouses) may not sign as witnesses to the will. The will must also indicate the date and place where it was signed.

A will is not valid if these legal requirements aren’t met.

Safekeeping of your will

Your last will and testament must be stored in a safe place. Inform someone in your family or circle of friends where you keep your will. Professionals who draft wills, like lawyers or banks, can keep your will at their premises.

Updating your will

Don’t forget to update your will when there is a change in your personal circumstances, or you acquire or sell assets.

How we can help you

Drafting a will is an essential aspect of estate planning that allows you to protect your assets, provide for your loved ones, and ensure that your wishes are honoured after your death.

Contact us if you’re unsure how to draft a will or have complex estate planning needs. Our legal professionals will ensure that it’s drafted to reflect your wishes regarding the distribution of your assets. Furthermore, we’ll make sure that it’s drafted in a tax-efficient manner to provide financial benefits and maximise permitted deductions.

How to evict a non-paying tenant

Investing in rental properties is an excellent way of securing income for retirement. It is, till it isn’t. And that happens when tenants don’t pay, and it becomes necessary to evict them.

The eviction process in South Africa is governed by the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), which provides certain protections for tenants.

The law is clear that a certain process must be followed. Landlords can’t just remove the tenant’s belongings and change the locks. These are the legal steps:

Step 1: Provide written notice to pay

The landlord provides a written notice to the tenant that they are in breach of their rental agreement and that they must pay their outstanding rent or vacate the premises. The notice should provide the tenant with a reasonable amount of time to rectify the breach. If there is no written lease agreement, the tenant must be given one calendar month’s notice to pay.

Step 2: Provide written notice to vacate

If no payment has been received, the landlord has the right to terminate the lease agreement and inform the tenant in writing by when they must vacate the premises.

Step 3: The Rental Housing Tribunal (optional)

If the tenant fails to pay their rent or vacate the premises, the landlord can file a complaint with the Rental Housing Tribunal. The complaint should include a copy of the written notice and any other relevant documentation.

Step 4: Obtain a court order

If the Rental Housing Tribunal can’t resolve the dispute, or if the landlord did not approach them, he can apply to the Magistrate’s Court or High Court (depending on jurisdiction) for an eviction order. The application should include a copy of the written notice, proof of non-payment of rent, and any other relevant documentation.

The court will provide the landlord with a date and time when the eviction application will be heard. Fourteen days before this date, the sheriff will serve the tenant and the municipality where the property is located with a written notice of the date of the eviction hearing.

Step 5: The eviction hearing

The court proceedings will give the tenant an opportunity to state the reason why they weren’t paying rent and shouldn’t be evicted. If the court determines that the tenant has a valid defence, then a trial date is set for the tenant to present their evidence. (see Step 6)

If there’s no valid defence, the court will issue a Warrant of Eviction that authorises the sheriff to remove the tenant and his possessions from the property. (see Step 7)

Step 6: The trial

If the court rules that the tenant didn’t have a valid defence it will issue a Warrant of Eviction.

Step 7: The Warrant of Eviction

Once the eviction order has been granted, the sheriff is authorised to remove the tenant and their possessions from the property.

What to look out for in a lease agreement

A lease agreement is a contract between a landlord and a tenant, giving the tenant the right to live in a property for a certain period. It’s not required to put a lease agreement in writing, but it’s highly advisable to do so.

What it should contain:

  • Names and addresses of the landlord and the tenant and their contact details.
  • Description of the property, including the physical address, and the type of property.
  • Rental amount and payment terms, such as the due date for payment and the consequences for late payment.
  • Duration of the lease: The start and end dates of the lease.
  • The termination and renewal procedures should specify how to end the lease and the options for renewing the lease.
  • Security deposit: The amount of the security deposit and the conditions for its refund. The security deposit should be held in an interest-bearing account for the benefit of the tenant.
  • Maintenance and repair responsibilities. Clarify which party is responsible for maintenance and repairs, and the procedures for reporting and addressing issues.
  • Restrictions and rules. Outline any restrictions on the use of the property and any rules or regulations the tenant must follow. For a sectional title property include the “house rules” of the complex.
  • Utilities. This should clarify which party is responsible for paying the utilities such as electricity, water, and gas, and how consumption will be measured.
  • Signatures of both parties. The lease agreement should be signed by both the landlord and the tenant to indicate their agreement and acceptance of the terms.

Handover inspections

It’s important for the landlord and the tenant to carry out joint inspections and note the state of the property on the date of the handover – when moving in and when moving out. The Rental Housing Act considers these inspections mandatory.

These inspections help identify any damage or other issues and determine who is responsible for repairing or addressing them. The ingoing inspection gives both parties a baseline of the state of the property. Photographs are very helpful to capture the exact condition of the property.

Should there be any disputes between the landlord and the tenant at the end of the tenancy, the ingoing inspection report serves as evidence of the condition of the property at the start of the tenancy. It also helps to identify which issues are the tenant’s responsibility and will be taken from his security deposit.

It’s advisable for landlords to use a lease agreement drafted by a legal professional. Tenants should also seek legal advice before signing a lease agreement.

Property repossessions

Repossession of a home can occur when a financial institution takes legal action to seize and sell the property of a debtor who has defaulted on their loan repayments.

Usually this happens once a debtor has repeatedly missed payments and not responded to the bank’s written requests to remedy the situation.

It’s advisable for a homeowner to immediately communicate with the mortgage holder if they find themselves in a financial predicament. Repossession would be a bank’s last resort, and they might be amenable to restructure the loan and give the debtor a “payment holiday” until his financial predicament has been resolved.

But if a sale in execution cannot be avoided, this is the process:

  • It typically begins with the bank sending the debtor a letter of demand, informing them of their default and requesting them to bring their payments up to date. If the debtor doesn’t respond or make the necessary payments, the bank may start legal proceedings to repossess the property.
  • To obtain an order for repossession, the bank must provide evidence to the court that the debtor is in default, that a mortgage bond is registered over the property as security for the debt, and that the repossession is necessary and fair. The court may also consider any defences or counterclaims raised by the debtor. But if the court grants the order for repossession, the creditor (the bank) has the right to take possession of the property and arrange for its sale.
  • The sale proceeds will be used to pay off the outstanding debt. Any surplus funds would be returned to the debtor. But if the sale proceeds are not sufficient to cover the amount owed, the debtor may be held liable for the shortfall.

The downside of a property being sold by public auction is that it may not realise more than what’s owed to the bank. It is highly likely that a private sale would achieve a higher price. That alone is a good reason to avoid a repossession sale.

It’s important to note that the repossession process must comply with certain legal requirements and procedures to protect the rights of the debtor. For example, the creditor must give the debtor notice of their intention to repossess the property and may not use force or intimidation to gain access to the property. The debtor may also have the right to defend against the repossession through legal means.

Both the creditor and the debtor should seek legal advice to ensure that their rights and interests are protected throughout the repossession process.

Transferring a house after a divorce

The legalities of transferring a property after a divorce depend on the terms of the divorce settlement and the nature of the property ownership. Once a court has granted a decree of divorce, properties must be transferred as stipulated in the agreement.

If a property was jointly owned by the spouses, the parties may agree to sell the property and divide the proceeds. Or one party may agree to transfer their share of the property to the other party.

The transfer itself may take a few months, but the interests of the party who acquired the property in terms of the divorce settlement are protected. That means, the other party cannot use the property as security for debts or encumber it with a mortgage.

If one spouse owned the property prior to the marriage, the transfer of ownership may be more complex. In general, if the property was acquired before the marriage and was not used for the common benefit of both spouses during the marriage, it may be excluded from the joint estate and remain the property of the original owner.

But if the property was acquired during the marriage, for example, with funds from the joint estate, it may be considered part of the joint estate and subject to division in the divorce settlement.

Once the terms of the divorce settlement have been agreed upon, the transfer of ownership can take place through a conveyancing process. This typically involves the registration of the transfer of ownership with the Deeds Office, which requires the submission of various documents and the payment of fees and taxes.

It’s important to note that the transfer of ownership must comply with all relevant legal requirements and procedures, including those related to transfer duties, capital gains tax, and municipal bylaws.

The parties should seek legal advice to protect their rights and interests, and to ensure that the transfer is conducted in accordance with the law.

Cancelling a property sale agreement

When a buyer signs an offer to purchase a property and the seller countersigns the offer, it becomes a binding agreement of sale.

What if one of the parties changes their mind? The buyer no longer wants to buy, or the seller no longer wants to sell. Is it possible to cancel the agreement of sale?

It all depends on the terms of the agreement and may have substantial financial implications. Basically, it’s important to study the agreement.

For example, a sales agreement automatically becomes void if the buyer is not able to raise finance. This usually happens early on, and the agreement automatically lapses. Once finance has been approved and a bank has issued the guarantee, there may be other suspensive conditions that, if not fulfilled, will cancel the agreement.

If one of the parties is in breach, for example, by not fulfilling a suspensive condition either in the time allocated or not being able to do so at all, this could be grounds to cancel the agreement. But it also depends on whether the agreement stipulates any remedies for such a situation.

On the other hand, new facts about the property may have come to the attention of the buyer that he feels the seller should have disclosed, which could put a spanner in the works. The seller may have knowingly concealed substantial defects, thinking he could rely on the voetstoots clause. But that isn’t always the case.

Of course, cancelling an agreement by mutual consent is always possible, depending on the situation. If the transfer process is already underway, it’s likely that the party who initiates the cancellation may be liable for legal and other fees.

Any one of these scenarios is possible, depending on the terms of the agreement:

Cooling-off period

There could be an agreed-upon cooling-off period stipulated in the agreement within which the buyer or seller could withdraw from the contract.


If either party breaches a specific clause of the agreement, the other party may be entitled to cancel the agreement.

Suspensive conditions

The agreement may have conditions that must be fulfilled by a certain date. If these conditions are not met, the buyer or seller may be entitled to cancel the agreement.


Rescission of the sales agreement may be possible if there was fraud or misrepresentation by one of the parties, or if there was a mistake in the agreement.

Mutual agreement

The parties may agree to cancel the agreement by mutual consent. In this case, the terms of cancellation should be clearly agreed upon in writing and signed by both parties.

A party who wishes to cancel a sales agreement should consult a qualified legal professional who can explain their rights or obligations and advise on the best way forward.

What is a usufruct?

A usufruct is a legal right given by the owner of a property to a person, usually for a specified period, to use and enjoy the property as if it were their own. This means that the usufructuary has the right to occupy the property and collect any income or profits from it. Subject to certain limitations, the usufructuary may also make necessary changes or improvements to the property.

An example of a usufruct would be if a father leaves a farm to his son in his will but stipulates that his wife should have continued use of the house on the farm until her death (or any other specified period). Upon the father’s death, the property would be transferred to the son, and the wife’s usufruct would be registered simultaneously against the title deed.

The wife, in this instance, has a limited right. She can live in the house but cannot sell the property, mortgage it, or leave it to someone else in her will. She also has certain obligations. Those include maintaining the property and paying rates and taxes. Only upon her death would the usufruct lapse, and the full property rights would automatically vest in her son.

During her lifetime, the son can use the house as security to obtain a mortgage, as he is the legal owner. But he is bound by the terms of the usufruct and may not infringe on the usufructuary’s rights. That means he cannot sell the property without the consent of the usufructuary.

For example, if the son decided to quit farming and wanted to sell the farm, which would include the house, his mother would have to agree to the sale, and both would also have to agree on how to divide the proceeds.

A usufruct is an excellent way for a husband to make provision for his wife and still bequeath a property to his children. The tax benefit in a situation like this is that the usufruct reduces the amount of estate duty payable by the testator’s estate. The value of the entire inherited property is reduced by the value of the usufruct.

In a different scenario that doesn’t involve a will, a usufruct can be granted by the seller of a property in a cession or notarial deed to reduce the amount of transfer duty. There are different tax implications in this scenario.

Suspensive conditions in property sales agreements

A suspensive condition is a clause in the sales agreement that stipulates particular criteria that must be met in order for the contract to come into force. If the suspensive conditions are not met, the agreement will be void.

Suspensive conditions can protect both the buyer and the seller. They are typically used to allow time for certain events to occur before the sale can be finalised. The most well-known suspensive condition in property sales is probably the clause requiring the buyer to obtain finance within a certain period. If the buyer cannot get a mortgage, there is no sale.

But there can be other conditions that have to be met. The seller is required to obtain certain compliance certificates. The buyer may have signed the agreement subject to the sale of his current property. Or the seller was in the process of renovations and the sales agreement stipulates that these need to be completed before the buyer takes occupation at a certain date. Whatever it may be, it’s important to include all suspensive conditions in the sales agreement for the protection of both buyer and seller.

What if a suspensive condition isn’t met? Often the timeline is quite tight. If any condition isn’t fulfilled within the appointed timeframe, then the transfer process could be delayed.

It’s therefore important to stipulate exactly what the remedy is if something doesn’t happen by an appointed deadline. If the buyer doesn’t sell his existing property within three months, will the sale be void, or is there leeway to renegotiate the terms.

Often buyers sign a standard estate agency offer to purchase and add a few handwritten notes. The seller may add a few more notes before signing the offer to purchase, which then becomes the sales agreement. This could result in ambiguity, leaving the suspensive conditions open to interpretation.

It is advisable to consult a conveyancing attorney, if there are complex suspensive conditions to ensure the agreement is worded in such a way to protect both parties.

Voetstoots – what does it mean?

Property sales agreements usually include a “voetstoots” clause. In South African law, the term voetstoots means “as is” or “with all faults”. When a property is sold voetstoots, the buyer agrees to accept the property in its present condition, including any defects or issues that may be present at the time of the sale.

This means that the seller is not responsible for any defects or problems that the buyer discovers after the sale is completed unless the seller deliberately concealed them. The buyer is expected to have inspected the property thoroughly before agreeing to purchase it and is responsible for any repairs or improvements needed after the sale.

But the voetstoots clause does not exempt the seller from his legal obligations to disclose any known defects or issues with the property. If the seller knowingly conceals defects or misrepresents the condition of the property, he cannot rely on the voetstoots clause. He may still be held liable for any damages that the buyer incurs as a result. The buyer may elect to cancel the contract or negotiate a reduction in the sale price, or even take legal action to resolve the issue.

A voetstoots clause is important for both parties. If the seller discloses all latent defects, he can avoid claims down the road. The buyer, after a thorough inspection, can make his offer based on the condition of the property, knowing what expenses may come his way in terms of repairs and renovations.

Can the seller remove fixtures?

You’ve bought a property, waited for bond approval, signed all the documents, and now the date of occupation has arrived. The estate agent hands over the keys and you’re ready to move in.

Of course, the property will look quite different to what you saw on show day. Once the furniture is gone, it usually does look rather appalling. You’re mentally prepared for that. But not for the missing water fountain in the garden, the empty space where the built-in shelves should be, and the glaringly absent awning over the carport.

These are fixtures you say, and they shouldn’t have been removed. And you’re probably right. But whether a seller can remove fixtures after the sales agreement has been signed depends on the terms of the agreement and the legal definition of what constitutes a fixture.

So what is a fixture? A fixture is a physical object that is permanently attached to the property and is considered part of the real estate. That means everything that’s built-in, bolted-on or otherwise attached, belongs to the property. Usually, these items are regarded as fixtures:

  • Alarm systems
  • Bathroom mirrors
  • Blinds
  • Built-in furniture
  • Ceiling fans
  • Curtain rails
  • Fitted carpets
  • Irrigation systems
  • Keys and remotes
  • Light fittings
  • Security cameras
  • Water fountains

Of course, the seller may have a garden shed or built-in bar that he wants to use at his next property. To avoid any misunderstanding and the unnecessary aggravation of having to resolve disputes down the road, rather list in the sales agreement the items that you agree will remain and those that the seller wants to remove.

Bottom line, a seller can only remove fixtures listed in the sales agreement.

Electronic signatures for property transactions

What if a seller lives in a house in Cape Town that he wishes to sell. A potential buyer in France, looking for an investment property, sees the house advertised online. How do they go about signing the agreement of sale and all the transfer documents? Let’s explore whether electronic signatures can be used for property transactions in South Africa.

Electronic signatures are becoming increasingly common because they’re convenient and speed up the process of getting documents signed. Applications such as DocuSign enable secure e-signature transactions with multiple levels of authentication. But contrary to other sales transactions, the sale of immovable property still requires a written document signed by all parties personally to be valid and binding in terms of the Alienation of Land Act.

Another piece of legislation, the Electronic Communications and Transactions Act, deals with electronic signatures of documents and specifically excludes agreements of sale of immovable property. Therefore, the sales agreement must still be signed “in wet ink” by the buyer and seller or their agents. The buyer or his agent can sign the sales agreement in France, but the physical paper contract will have to be couriered back and forth.

Now to the next step, the transfer documents. The transfer of property is governed by the Deeds Registries Act, which requires that any transfer of land must be in writing and signed by all parties. Traditionally this has been interpreted as requiring a physical signature. But in recent years there has been a move to recognise electronic signatures as valid alternatives to wet ink signatures.

The Deeds Office still requires documents to be printed, signed, and physically submitted for registration. But once the Electronic Deeds Registration Systems Act is fully in effect, this process will be much easier. Presently, only one section is in force. The one that authorises the Chief Registrar of Deeds to develop, establish and maintain an electronic deeds registration system. Eventually, this system will replace the current manual preparation and lodgement process. And then the entire process will speed up dramatically.

Can foreigners buy property in South Africa?

The short answer is yes. Foreign buyers, whether they are natural persons or legal entities registered outside the country, can buy property in South Africa. Of course, they must comply with local legislation. For example, a foreign company or trust will be required to register locally according to the requirements set out in the Companies Act.

Properties may be sold to permanent resident holders who are non-citizens and to refugees with a permanent residence permit after they’ve lived in South Africa for five continuous years. But selling or letting property to illegal foreigners is, well, illegal.

Visa requirements

It needs to be clear whether a property is purchased for investment or whether the foreign national wants to stay in the property for a longer period. Often foreigners buy holiday homes where they stay for a few months and rent the property out as holiday accommodation for the rest of the year. Then they might need a visa or residence permit. The requirements are set out in the Immigration Act 13 of 2002.

Buying online

You don’t have to be in South Africa to buy a house. Non-residents can view a property on the internet and complete the transaction without ever setting foot in the country. Depending on the country of signature, the purchaser will need to have documents signed before a notary public or at a South African embassy. In some instances, the documents may have to be apostilled.

Exchange control

Exchange control regulations state that foreigners may only borrow up to 50% of the purchase price of a property locally. The balance must be paid in cash and may well be sourced from an international bank. The amount and purpose of foreign funds brought into South Africa must be reported to the Financial Surveillance Department of the South African Reserve Bank, which regulates and monitors cross-border transactions.

Foreign nationals who bought a holiday home and receive rental income will be liable for tax as a non-resident, and they’ll have to pay capital gains tax when they sell the property. Upon the sale of a property, the proceeds up to the amount that was introduced from a foreign source, plus the capital growth and interest, can be repatriated.

Don’t buy before you’ve received legal advice

If you’re a foreign national, consult a local conveyancing law firm that understands the regulatory requirements and has experience in assisting foreign nationals in purchasing property in South Africa before you sign the sales agreement.

What if the seller of a property dies before transfer?

When you buy a house quite a few things must happen at the appointed time for the transaction to run smoothly.

As a buyer, you would have either given notice at a rental property or sold the home where you live now. The evacuation date at your current home is likely to coincide with your occupation date of the new property. You would have cancelled services and booked the movers. If everything is going according to plan, the transaction should take about three months from signing of the sales agreement to transfer.

But what if the owner and seller of the new property dies before signing the transfer documents?

This is the legal position

The sales agreement remains in force when a seller dies. But the process comes to a halt until an executor for the deceased estate has been appointed by the Master of the High Court.

Once appointed, the executor must make sure that the estate is solvent and that the sale agreement is valid and binding. The executor must sign a new Power of Attorney, endorsed by the Master of the High Court, for the transferring attorneys so they can continue with the conveyancing process.

If the matter has already been lodged at the Deeds Office, the attorneys will need to resubmit the documents with the new Power of Attorney.

Do the heirs have a say?

The heirs only need to consent to the sale of a property if there is no valid sales agreement in place.

If there is a valid sales agreement and the heirs object to the sale, then the buyer may have to enforce the sales agreement in court.

How long until the property is transferred

Although the sales agreement remains in force, the seller’s death will stop the proceedings. It usually takes about four to eight weeks after the estate has been reported to the Master’s Office before the Master issues his Letters of Executorship. Once the executor has been appointed and the transfer process is underway again, there should be no further delays.

What if the buyer dies?

If the buyer financed the property via a mortgage, the bank would likely withdraw its guarantee as the buyer would no longer be able to repay the loan. Then the sale would be cancelled. Only in a cash transaction would the buyer’s estate be obliged to pay the purchase price and proceed with the transfer.

Our conveyancing practice can assist you with any queries in connection with your property transfer.

Selling or buying property – The conveyancing process

Miniature white house being past from one person to another.

Conveyancing is the means of legally transferring ownership of immovable property. It’s a complex and lengthy procedure of obtaining and preparing documents for submission to the Deeds Office to transfer a property from a seller to a buyer.

Many parties are part of this process:

  • Estate agent
  • Seller
  • Buyer
  • Financial institution
  • Transfer attorney: Transfers the property from seller to buyer, appointed by the seller
  • Bond attorney: Prepares the buyer’s bond documents, appointed by the bank that provides the mortgage to the buyer
  • Cancellation attorney: Cancels the seller’s bond, appointed by the bank that holds the seller’s mortgage

Plus, secondary parties that supply compliance certificates and clearance figures, such as tradesmen (electrician, plumber), the municipality or body corporate.

All these people must provide their services in good time for the transfer to take place. It’s important for a seller to instruct an experienced conveyancing attorney, who controls this process, to attend to the property transfer.

Here’s a breakdown of the process.

The sales agreement and other documents.

  • Buyer and seller sign the sales agreement.
  • The seller instructs a conveyancing attorney to deal with the transfer.
  • The buyer usually has an agreed period in which to get a loan. Once the buyer’s bond has been approved by a bank, the bank will instruct an attorney to attend to the bond registration.
  • If the seller has an existing bond over the property, that bank will instruct another attorney to attend to the bond cancellation. If there’s more than one existing bond, each bank will instruct its own attorney.
  • The seller provides electrical, plumbing, beetle, gas, and electric fence certificates (not all of these are required for every property).
  • The transferring attorney will obtain the title deed and the cancellation figures for the existing bond/s, rates clearance figures, levy figures, and a guarantee from the buyer’s bank for the purchase price (or the balance if the buyer paid a deposit).
  • Any suspensive conditions, for example, the prior sale of the buyer’s existing property, must be fulfilled before the transaction can continue.
  • When all conditions have been met, the buyer and seller each sign the transfer documents. The buyer also signs bond documents.


  • The buyer pays the transfer costs.
  • The seller pays rates and levies, including any advance payments.
  • The transfer attorney obtains transfer duty receipts from SARS, rates clearance certificates, and a levy certificate (if any) and makes all payments.


Once all documents have been signed, all certificates are in place, and costs have been paid, the documents are prepared for lodgement at the Deeds Office. All attorneys must lodge their documents on the same day.

The Deeds Office has 10 working days to examine the document. If all goes well, the attorneys will be advised that the matter is “up for registration”. If anything is not in order, the attorneys will have to amend the documents and relodge, and the Deeds Office will have another 10 working days to examine the documents.


Once the Deeds Office has completed its examination and everything is in order, the attorneys have five days to appear at the Deeds Office to register the deeds. Once the Registrar of Deeds has signed the documents, ownership of the property passes from the seller to the buyer.

  • The buyer’s new bond has been registered and the seller’s existing bond has been cancelled.
  • All guarantees have been paid, the estate agent has been paid their commission, and the seller has received the net proceeds.

The buyer can now move into his new home unless an occupation date other than “on transfer” has been agreed upon in the sales agreement.

This is not the end of the story

About three months later, the Deeds Office sends the original title deed and bond documents to the attorneys. They will forward the title deed to the bank that provided the mortgage, or to the owner if there is no bond. Copies of these documents are usually sent to both buyer and seller by their attorneys.

If you’re selling your property and would like further information, contact us. We understand the legislation governing immovable property and the complexities of the conveyancing process. You can rest assured that your property transactions are in good hands with us.

Selling or buying property – Useful information

Miniature orange house with blue door and a For Sale tag next to it.

Useful information to have at hand before buying or selling a property.

The sales agreement

By law, this agreement must be in writing, signed by both the seller and the buyer. Usually, the buyer signs an offer to purchase provided by an estate agent. If the seller accepts the offer and countersigns, it becomes a binding agreement of sale.

The purpose of the sales agreement is to capture the relevant information of both parties, the property description, the purchase price, as well as all conditions relating to the sale.

Any changes to the agreement must be in writing, signed by both parties.

The property

Usually, properties are sold voetstoots. That means at the buyer’s risk without guarantee or warranty. But it’s advisable for the seller to disclose any hidden defects to avoid disputes down the road.

Occupation date

When there are no delays, the process from signing the sales agreement to transfer should take around three months. The buyer and the seller agree on the occupation date. The buyer can take occupation on a specific date or on registration of transfer.

If the agreed date is before transfer, then the buyer will pay the seller occupational rent – an amount stipulated in the sales agreement. Should transfer take place before the agreed date, then the seller will pay occupational rent to the buyer.


Anything that’s fitted, from the satellite dish to a built-in braai, forms part of the property. When in doubt, specify items that aren’t included, for example, a water feature in the garden.

Clearance figures

The seller will need a rates clearance certificate from the municipality. This usually involves paying 4-5 months’ rates in advance to cater for the time from date of signature of the sales agreement until the property has been transferred into the buyer’s name.

For a sectional title property, the body corporate will have to provide a levy clearance figure.

Bank guarantee

The buyer’s bank provides a guarantee for the purchase price (or the balance if the buyer paid a deposit).

Compliance certificates

The seller must obtain compliance certificates from certified service providers that everything is in working order and compliant with industry standards, for some or all of these:

  • Electrical (house)
  • Electric fence
  • Water/plumbing
  • Gas
  • Beetle

In our next blog, we’ll outline the conveyancing process, that’s the transfer of the property from the seller to the buyer.

Buying a house – What you need to budget for

Miniature wooden house with coins on side and a calculator.

It’s exciting to buy a new home, but it’s also important to carefully consider all the financial implications.

There are once-off costs when you buy a property, but then there’ll be ongoing expenses other than the monthly mortgage repayments.

The purchase price

Several factors determine how much you can afford when you decide on buying a house that you need to finance through a bank.

Your credit rating. The higher your credit score, the better your chance of getting a mortgage with a favourable interest rate.

Your deposit. Banks usually require a 10% deposit, but a substantial down payment will increase your chance of getting a mortgage and it’ll also lower your monthly repayments. You will need to pay this deposit upfront to the estate agent or transferring attorney, who will keep it in a trust account.

Costs to transfer and register a property

Transfer duty is a tax levied on the value of the property, payable to SARS. There is no transfer duty payable on properties below ZAR1m.

Value added tax. The tax status of the seller determines whether VAT is payable instead of transfer duty. For example, the purchase price of a property bought from a property developer would include VAT and not transfer duty. In such a case, SARS issues a transfer duty exemption certificate.

Transfer fees are payable to the transferring attorney who handles the process of transferring the property from the seller to the buyer.

Bond registration fees. When the purchase price (minus the deposit) is financed by a bank, a mortgage bond will be registered over the property in the bank’s favour. The bank appoints an attorney who attends to the bond registration.

The transfer of the property and the bond registration take place simultaneously. All attorney fees are regulated by the Legal Practice Council of South Africa and are payable before registration.

Deeds Office fees are payable for the transfer of the property and the mortgage bond registration to the respective attorneys.

Bank initiation fee. The bank charges this fee for processing your application. It is either a flat rate or based on the size of the loan. Usually, this fee is included in the loan amount, but it can also be paid upfront.

Your monthly expenses as a homeowner

On the registration date of a property at the Deeds Office, all risks pass to the buyer and the buyer is also liable for all expenses relating to the property.

Bond repayments will depend on the size of your loan amount and the duration of the loan, usually 20 or 30 years. The bank will inform you of the minimum monthly payments required. Paying additional amounts into the loan account not only reduces the loan amount faster, but it can substantially reduce the total amount of interest you pay. Also, upon arrangement with the bank, you may be able to withdraw these funds later, for example for home improvements.

Property insurance. Banks require a financed property to be insured for the duration of the loan. The banks usually offer property insurance to clients. But a buyer is free to choose any insurance company and then provide proof of insurance to the bank. This insurance is for the building and is in addition to any home contents insurance you may have.

Municipal rates and taxes, electricity, water and sanitation charges. Your monthly invoice from your municipality will include these charges.

Sectional title levies. A levy for the upkeep of communal properties is usually charged by the body corporate of a townhouse complex.

Garden upkeep, security. If you’ve moved from a townhouse to a freestanding house, or from a rented property to your own home, gardening and security costs will now be for your account and not included in a levy or rental.

Home maintenance. It’s advisable to set aside a fixed amount every month to cover unexpected home maintenance emergencies and long-term maintenance. If you have rented before you bought, plumbing emergencies and other ad hoc repairs are now for your account. To retain the value of your property regular maintenance is advisable.

Now that you have an overview, feel free to contact our conveyancing practice, if you have any further questions.