Donald Moore of Guthrie & Rushton wrote:
If there is any need for the Deeds Office to enquire into the value of the property sold in an 18(3) estate then there must be exactly the same requirement for all 18(3) transfers whether arising from a sale or an inheritance.
If the Deeds Office needs to check on matters such as whether an 18(3) authority has been properly issued or is being properly used then it seems to me that there should be some statutory provision to impose this responsibility. I would advise as strongly as possible against making the Deeds Office responsible for policing such aspects.
Consider where this may lead. It is possible that letters of executorship or other authorities to have been withdrawn. It is the conveyancer's responsibility to ensure that the executors authority is in order as it is with 18(3) appointments. If the Deeds office has to police 18(3) appointments then will someone tell me why they should not also police letters of executorship and the appointment of trustees on insolvency and liquidators and any other authority such as powers of attorney.
It is the conveyancer's responsibility. Please let it rest there.
While Patrick Barnard of ExecTrust Administrators (Pty) Ltd responds:
My view is the same as that of Donald Moore in Sales a response dated 15 May 2008 (above).
Firstly, deceased estates practitioners are requested to follow either a "formal" or an "informal" process, hence the Section 18(3) process (commonly known as the "informal process") as practitioners are not required to follow the process of advertising for creditors and so on in these instances. The Section 18(3) process has mainly been put into place by Legislators to assist the Master's Offices (and also our community) in speedier finalisation of the administration process of deceased estate administration, that may be prolonged by unnecessary administrative processes.
Properties that may be sold for more than what is reflected in the Initial Inventory (Section 9 of the Admin of Estates Act, as amended), may "push" the estate's value over the Section 18(3) threshold, currently R125 000. However, the responsibility remains with the Executor to advise the Master of the High Court if and when the estate's value does exceed the threshold (set from time to time by the Minister of Justice). The executor cannot pass his responsibilities/duties on to a third party (even in the case of Power of Attorney) and it is not fair to expect either the conveyancer or the Deeds Office officials to carry this sort of responsibility. I agree on the other hand that an executor's list of responsibilities/duties remain lengthy, but fact remains fact and he cannot pass these responsibilities on a third party. One should also not lose site of the fact that all transfers are sighted (whether passed or not) by the SA Revenue Service.
There is further rumour that the threshold for Section 18 (3) estates may be increased, so it may a very good idea for Deceased Estates Practitioners and conveyancers to get their communication lines cleared up and understand who is responsible for what, as we live in an almost instantaneous society and things need to happen sooner rather than later (thanx to technology). After all, the Fiduciary Industry, contrary to popular belief, is an essential service that is required by our society.