Property law in South Africa can be complex and multifaceted. In situations where a spouse dies, the process of transferring property ownership can bring legal challenges. This is especially true if the estate involves a will, outstanding debts, or multiple beneficiaries. Legal representation can provide much-needed guidance during an already difficult time, so that you can focus on your personal affairs.

To answer the question “Do you pay property transfer fees when a spouse dies?” the short answer is no. If your spouse passes away and you inherit the property, you do not pay transfer duty fees on that property. Anytime property is inherited through a deceased estate (whether in terms of a valid will or by intestate succession), Section 9(1)(e)(i) and (ii) of the Transfer Duty Act exempts the surviving spouse or inheritor from paying transfer duty fees.

Transfer Duty Exemption: Not Always a Given

Typically, SARS issues a Transfer Duty Exemption Certificate as part of the deceased estate process when property passes to a beneficiary. In the following cases, the property will not be exempt from transfer duty fees after a spouse’s death:

Property is Sold Before the Transfer:

If the estate sells the property to someone else before it is passed on to the beneficiaries, the buyer will have to pay transfer duty.

Not Transferred to Spouse/Family:

This exemption usually only applies when the property goes to the surviving spouse or direct family members. If it goes to someone else, the transfer duty needs to be paid.

Buying Instead of Inheriting:

If you buy the property from the estate rather than inheriting it, transfer duty fees will apply. Legally, the transfer duty exemption only applies when the property passes as an inheritance, not when you pay for it.

Incorrect Paperwork:

If the estate does not get the right exemption certificates or files the wrong documents, SARS may ask for transfer duty to be paid.

Other Costs Still Apply:

You must keep in mind that, even though transfer fees are typically exempt, other costs may apply. These costs include conveyancing (transfer attorney) fees, as a conveyancer is needed to register the transfer from the deceased’s estate to your name. If you are wondering who should use a property lawyer it’s legally required when transferring property to a spouse after death

Other costs that may apply include rates and levy clearance certificates, Deeds Office registration fees, executor’s fees, and bond cancellation costs if the property was financed. Although many of these are usually covered by the estate, you, as the spouse, may sometimes need to step in if there are not enough funds available.

In addition to property law, we also specialise in Wills & Estates and can legally assist with Commercial & Trust Law. Let RCS Smith and Associates provide a service that simplifies the legalities following the property transfer of a deceased spouse. We are here to help you through the process that lies ahead, ensuring all the legal requirements are met. Contact us today!