What happens to a house when the owner dies?

When the owner of a house dies, the house does not move anywhere. It stays registered in the deceased's name at the deeds office until an executor is appointed and a conveyancer registers a transfer out of the estate. That is true whether there is a will or not, whether the family lives in the house or not, and whether the heir is a spouse, a child or a stranger.

Nothing can happen to the property until the Master of the High Court issues letters of executorship, or letters of authority under section 18(3) for a small estate. Before that, nobody has the legal authority to sell it, transfer it, sign an offer to purchase on behalf of the estate or give anyone a lease. An agreement signed by a family member before the appointment is not an agreement the estate is bound by, and estate agents who do not know this cause real damage.

Who gets the house

That is decided by the will if there is one. The will may leave the house to a named person, or leave the whole estate to be divided in shares, in which case the executor and the heirs work out whether the house is transferred to one of them or sold and the money divided.

If there is no will, the Intestate Succession Act 81 of 1987 decides. Read what happens if you die without a will and try the intestate succession calculator.

The marriage regime matters as much as the will. If the deceased was married in community of property, there was one joint estate, and the house formed part of it whichever name was on the title deed. The surviving spouse already owns half of the joint estate. The deceased's half is what passes under the will or under intestate succession. The Matrimonial Property Act 88 of 1984 governs this. If the marriage was out of community of property with an antenuptial contract, the house belongs to whoever is registered as owner, and only that person's estate deals with it.

How the transfer works step by step

1. The estate is reported to the Master within 14 days of death. Read how to report a deceased estate to the Master.
2. The Master issues letters of executorship. Until this arrives nothing about the property can move.
3. The executor tells the bank that holds the bond, and tells the municipality and the body corporate or homeowners association.
4. The executor establishes what the property is worth and whether the estate has enough cash to pay the debts without selling it.
5. The executor decides, with the heirs, whether the house is transferred or sold. If an heir takes the house and it is worth more than their share, they usually pay the difference into the estate.
6. The executor instructs a conveyancer. A conveyancer is an attorney qualified to register property transfers. Only a conveyancer can lodge the transfer at the deeds office, under the Deeds Registries Act 47 of 1937.
7. The rates clearance certificate and levy clearance are obtained. The municipality must certify that the rates are paid up before the deeds office will register anything. This step delays more transfers than any other.
8. The bond is settled or taken over. If the house is sold, the bond is paid from the proceeds. If an heir keeps it, they usually have to apply for a bond in their own name, and be approved for it.
9. The transfer is registered and the heir or buyer becomes the registered owner.

A worked example

The names and figures are illustrative only.

Naledi's father Solomon dies. He owned a house in his own name with a bond over it, and was married out of community of property. His will leaves everything equally to Naledi and her brother Thabo. Neither of them wants to live in the house.

Naledi reports the estate. Eight weeks later the letters of executorship are issued naming her as executor. She writes to the bank telling it that Solomon has died and asking for the outstanding bond balance. She keeps paying the monthly instalment out of the estate, because if she stops the bank can start legal proceedings and the arrears eat into what the family will eventually receive. She keeps the household insurance running and keeps paying the rates.

She lists the house, accepts an offer, and instructs a conveyancer. The conveyancer applies for the rates clearance certificate, which takes several weeks because the municipality first has to bill a few months ahead. Transfer registers about three months after the offer was accepted. The bond is settled from the proceeds and the balance goes into the estate account, to be distributed when the liquidation and distribution account is confirmed.

Now change one fact. Thabo wants to keep the house. The executor gets it valued, Thabo applies to a bank for a bond in his own name, and once he is approved the house is transferred to him with his sister's half paid for out of his own funds into the estate. The process at the deeds office is the same.

Who can live in the house meanwhile

In practice the family usually stays. The executor is entitled to decide, because the executor is responsible for the estate's assets, but few executors put a widow or children out of a house. If someone lives in the house during the winding up, the sensible arrangement is a written one saying who pays the rates, the levies, the insurance and the bond, so that nobody argues about it a year later.

If the house is rented out, the lease continues. The tenant keeps their rights and the rent is paid to the estate once the executor gives them the details.

What to do this week

1. Report the estate to the Master. Nothing about the house moves until the letters are issued.
2. Tell the bank that holds the bond. Ask for the outstanding balance in writing and ask what it needs from you.
3. Keep paying the bond, the rates, the levies and the insurance. Falling behind costs the estate money it cannot recover.
4. Check the household insurance is still valid. Some policies restrict cover on an unoccupied house. Tell the insurer who is living there.
5. Find the title deed. If the bond is still running, the bank holds it.
6. Do not sign anything with an estate agent until the executor is appointed.
7. Do not remove furniture or fittings. They form part of the estate and the heirs are entitled to an account of them.
8. Secure the house if it is standing empty, and tell the neighbours or the body corporate.

Documents to gather

• the death certificate, original and certified copies
• the title deed, or the bank's details if the bank holds it
• the bond account number and the latest bond statement
• the most recent municipal rates account
• the body corporate or homeowners association levy statement
• the household insurance policy
• the marriage certificate and antenuptial contract, if there is one
• a municipal valuation notice or a recent market valuation
• any lease over the property
• the letters of executorship or section 18(3) letters of authority, once issued

Realistic timeline

The letters of executorship come first, and how long they take depends on the Master's office and whether any queries are raised. Read how long it takes to wind up a deceased estate.

Once the executor is appointed and a decision is made, the conveyancing itself typically runs to a few months from instruction to registration. The rates clearance certificate is the usual bottleneck, and a disputed or unbilled municipal account can add months on its own.

If the house is sold, the money does not go straight to the heirs. It goes into the estate account and is only distributed once the liquidation and distribution account has lain open for inspection and been confirmed. Families are often surprised by this last stretch, so plan for it.

Common mistakes and what they cost

• Signing an offer to purchase before the executor is appointed. The estate is not bound, the buyer walks away, and everyone has wasted months.
• Stopping the bond payments. The bank does not write off a bond because the borrower died. Arrears, interest and legal costs come off what the heirs eventually get.
• Letting the insurance lapse. A fire or a burst geyser in an uninsured house can wipe out the estate's biggest asset.
• Letting the rates fall behind. No rates clearance certificate means no transfer, and the arrears are paid from the estate anyway.
• Moving in and treating the house as yours. Until transfer is registered it is not, and any improvements you pay for may simply increase the value that the other heirs share.
• Selling the furniture. Movable property in the house forms part of the estate. Removing it before the inventory is drawn causes real disputes.
• Assuming a surviving spouse automatically owns the whole house. In a marriage in community of property the survivor owns half the joint estate. The other half still goes through the estate.
• Using an ordinary attorney instead of a conveyancer. Only a conveyancer can register the transfer.

If you cannot afford an attorney

You cannot avoid a conveyancer, because only a conveyancer may register a transfer at the deeds office. Those costs come out of the estate or out of the proceeds of the sale, not out of your own pocket, which is the important thing to understand if the family has no cash.

Everything before that stage you can do yourself. The Master's office deals with the public directly, and the reporting forms are free. Small estates are administered under section 18(3) letters of authority by a family member, with no executor and no executor's fee, and a house can still be transferred out of a small estate on the authority of those letters.

Legal Aid South Africa on 0800 110 110 assists people who pass its means test. University law clinics in most large centres help families with estate paperwork at no charge. For an idea of the costs involved, see what a wills and estates attorney costs, the executor fees and estate duty calculator and the deceased estate reporting checklist.

Frequently asked questions

Families ask three things about the house above all else. Can we sell it now. Do we still have to pay the bond. Can we carry on living here. The answers are that nothing can be sold before the letters of executorship are issued, that the bond continues and must be paid or the arrears come off everyone's inheritance, and that the family can usually stay if the executor agrees, ideally on written terms. The answers below cover the rest.