MONTHLY NEWSLETTER ISSUE 03 MANAGING DISPUTES OVER A DECEASED RELATIVE S ESTATE If someone leaves a sizeable estate behind, it may cause conflict among the possible heirs. The help of an attorney, when settling an estate after a death, can avoid unnecessary troubles. The Administration of Estates Act, 1965, determines what must happen with an estate after a person s death. There are certain steps that should be taken to ensure the process is legal. However, if the estate is worth a lot of money or the deceased has children, then it is a good idea to seek the assistance of an attorney, as family disputes and debts of the deceased can be confusing. In order to this an executor will be appointed to act on behalf of the estate. Finding the will of a deceased relative If the deceased person left a will the first thing to do is find it. If they did not tell you beforehand where their will was, you can try calling the probate court in their district or the office of the master of the High Court to check if they have a copy of the will. Other places to call would be the deceased s life insurance company, bank or lawyer. Otherwise, they might have left a copy of it somewhere secure in their home. Who is the executor? An executor is the person appointed to handle the process of settling the estate. The executor will either be mentioned in the will of the deceased or appointed by the master of the High Court. The master will ultimately decide who will take the role of executor. If the chosen executor doesn t know how to handle the estate or is unfamiliar with the legal procedure, he or she can go to a lawyer for help. Once the executor has been chosen, the master will give them Letters of Executorship, which will give only them the authority to handle the estate. What does the executor need to do? The executor has several responsibilities such as arranging the valuation of the estate s property and assets. They will also be responsible for contacting and dealing with all the beneficiaries. Some other responsibilities of the executor include: 1. Arranging provisional payments for the family s immediate needs. 2. Opening a bank account for the estate and depositing the estates money in it. 3. Paying all the necessary estate duties.
It s important that any person who wants to act on behalf of the deceased person s estate have the Letters of Executorship. If not, their actions would be considered illegal. This also applies to the spouse of the deceased person. This eliminates the possibility of several different family members trying to influence the estate s dealings. The executor will also decide how the assets will be divided between the heirs and if any or all assets need to be sold. If a will is in place the executor will base his/her decisions on it. Eventually, the executor will prepare a liquidation and distribution account. This would include what will they intend to do with all the assets left after expenses. This account would be delivered to the master, who will check to see if the executor s actions reflect the will of the deceased and that all legal requirements have been fulfilled. Important things to keep in mind? The master of the High Court should be notified of the deceased person s estate not later than 14 days after the death. According to the Department of Justice a death of anyone who owned property in South Africa must be reported to the master, whether or not they died in the country. All estates that exceed R50 000 should be reported to the master of the High Court directly because magistrate s offices have limited jurisdiction. If reported to the magistrate s office, estates would usually be referred to the master. The Department of Justice and Constitutional Development. 2012. Reporting the estate of the deceased. Accessed from: http://www.justice.gov.za/services/report-estate.html/ on 11/05/2016. Administration of Estates Act 66 of 1965. Accessed from: http://www.justice.gov.za/ on 11/05/2016. THE CONSUMER PROTECTION ACT AND YOUR RIGHTS The South African Consumer Protection Act, No. 68 of 2008 was signed on 24 April 2009 and the purpose of the Act is to protect the interests of all consumers, ensure accessible, transparent and efficient redress for consumers who are subjected to abuse or exploitation in the marketplace and also to give effect to internationally recognised consumer rights. The Consumer Protection Act define a consumer as any person to whom goods and services are marketed, who is a user of the supplier s goods, enters into a transaction with the supplier or service provider of any services and products. If you have a complaint and the supplier won t resolve it for you, you can complain to your provincial Consumer Affairs Office or the National Consumer Commission as well as other bodies. The Consumer Protection Act: 1. ensures that you are treated as an equal and protects you against discrimination in economic transactions. 2. protects your privacy and ensures fair practice when goods or services are marketed to you.
3. means you have the right to choose the agreements you enter into and continue with. 4. gives you the right to the disclosure of information so that you can make informed choices. 5. protects you against fraud and other dishonest practices. 6. makes sure that you don t have to agree to unfair conditions in the small print. 7. allows you to return things which don t work properly. 8. protects you against goods and services that can harm you. 9. makes suppliers compensate you if they have caused you a loss. 10. ensures that you are educated on consumer issues and the results of your choices. 11. makes it possible for you to form groups to promote your interests. The Consumer Protection Act can help consumers in dealings which involve advertising, marketing, promoting, selling, supplying and delivering or repairing of goods and services in South Africa. You are a consumer if you have made a deal with a supplier, for example, when you pay for goods or services, or if goods or services are marketed to you. Goods include things, but also information and data and the licence to use it. Services include receiving advice or training you pay for, transport of people or goods, transactions at restaurants and hotels, entertainment and access to electronic communication. Employment relationships, credit agreements, deals between two private consumers and goods or services supplied to government do not fall under the Consumer Protection Act. http://www.saconsumercomplaints.co.za/your-rights/ http://www.legal-aid.co.za/selfhelp/?p=422 WHAT IS A TITLE DEED? If you are planning to buy a new property, you will need to get the title deed transferred into your name to prove that you are the owner of the property. You will need the assistance of a lawyer specialising in property transfers (also known as a conveyancer) to help you transfer the title deed into your name. You will only become the owner of the property when the Registrar of Deeds signs the transfer. After it has been signed, a copy of the title deed is kept at the Deeds Office closest to you. A Title Deed is documentary proof of ownership in terms of the Deeds Registries Act 47 of 1937. Each property has its own separate Title Deed. It is an important document containing all the details pertaining to a particular property.
These details are:. The name of the existing owner as well as the previous owners. A detailed property description which includes size. The purchase price of the property paid by the existing owner. Conditions applicable to the zoning, use and sale of the land. All real rights registered in respect of the property. The owner will normally have the Title Deed or a copy thereof in his possession. Before signing an offer to purchase carefully scrutinize the Title Deed. What is The Deeds Office and The Deeds Registry? There are numerous Deeds Offices throughout South Africa. Each Deeds Office holds a Deeds Registry, containing filed Title Deeds of all the properties in its particular jurisdiction. All the Deeds Registries are linked to a computer network. Your estate agent can, via a computer-linked facility from his office, examine any Title Deed (registered from 1980) in the country s combined Deeds Registry. What s the Difference Between a Property Deed and a Title? Title is the legal way of saying you own a right to something. For real estate purposes, title refers to ownership of the property, meaning that you have the rights to use that property. It may be a partial interest in the property or it may be the full. However, because you have title, you can access the land and potentially modify it as you see fit. Title also means that you can transfer that interest or portion that you own to others. However, you can never legally transfer more than you own. Deeds, on the other hand, are actually the legal documents that transfer title from one person to another. Sometimes the Deed is referred to as the vehicle of the property interest transfer. References https://www.westerncape.gov.za/service/title-deeds-proof-property-ownership https://www.rocketlawyer.com/article/whats-the-difference-between-a-roperty-deed-and-a-title-ps.rl http://www.conveyancing24.co.za/ ELECTRICAL COMPLIANCE CERTIFICATES - SELLERS, BEWARE OF POSSIBLE WITHDRAWAL! It is compulsory that a valid electrical compliance certificate (also known as a COC) be produced to the purchaser of your immovable property. This is a provision of the Electrical Installation Regulations which came into effect in 2009 in terms of the Occupational Health and Safety Act (No. 85 of 1993) and applies to all property transfers. The purpose of the certificate is to verify that the electrical work and installations that have been completed on the property are up to standard and in accordance with the Regulations as required by the South African National Standards. In terms of the Electrical Installation Regulations only a registered electrician may issue a certificate of compliance after he/she has inspected and tested the electrical installations in the property. Should the electrician detect any faults or defects in any part of the electrical installation rendering the system unsafe, the registered electrician
must refuse to issue a certificate until the identified faults or defects have been repaired. It is therefore paramount that you ensure your electrician is registered and that the certificate of compliance is issued only after the necessary repairs have been attended to. It happens too often in practice (and especially when a transfer is urgent) that the electrician issues the compliance certificate prior to tending to the repairs with the intention to attend at some later stage. This procedure is not allowed and it remains your responsibility, as the seller, to ensure that this does not happen. Remember in terms of the sale agreement you have a legal obligation towards the purchaser to provide a valid certificate. You have the right to ask for proof of registration as an electrician from the person attending to the work as well as a copy of his registration certificate (license) issued by the Department of Labour. Make notes of all the details and do not proceed where the above information is not readily available. It is important to keep in mind that should a purchaser become dissatisfied with the certificate of compliance you provide he/she may request that an electrical audit be conducted to ensure that fundamental safety principals are being adhered to. The purchaser may contact the Electrical Approved Inspection Authority Southern Africa (EAIA- SA) to determine whether the works carried out by your electrician complies with the relevant standards. Should the EAIASA inspector find that your certificate is non-compliant they have the authority to withdraw the certificate and demand a new one be issued in accordance with their specifications. In addition to the exposure to new unbudgeted costs, there is a good chance that the withdrawal could delay transfer as the registration of your property cannot lawfully proceed without the certificate. To sum up, ensure that you identify a reputable electrician in order to avoid problems arising in the future. Do not fall prey to unscrupulous and unregistered electricians. You may consult with Consumer Complaint forums to identify previous complaints against the electrician you want to use.. http://www.geia.co.za/home-sellers-compliance.html http://www.sanas.co.za/af-directory/inspection_list.php?inspectionorder=sorter_disciplines&inspectiondir=asc https://www.linkedin.com/company/western-cape-approved-electrical-inspection-authority-wcaeia-?trk=company_logo http://www.sanas.co.za/schedules/inspection/elec0006-05-2016.pdf THIS NEWSLETTER IS COMPILED IN-HOUSE BY BYRON WHITE OF ESI ATTORNEYS. Please contact ESI Attorneys at 021 943 5111 or Byron White at byron@esilaw.co.za should you have any further queries and/or would like to make suggestions for future property related articles!