Selling or Transferring a Deceased Estate Property

When someone dies owning property, someone has to deal with it, usually while grieving and often from another city. Whether the property is sold or passed to a beneficiary, the steps start with the will and the title, and the order they are done in matters.

Optimum Lawyers is a property law firm in Parramatta Square, led by principal solicitor Wisam Assi. We act on property in every Australian state and territory.

First, how was the property owned?

• Joint tenants. The surviving owner takes the whole property. The title is updated with a death certificate, and the property does not form part of the estate. See joint tenants and tenants in common.
• Sole owner or tenant in common. The property or share forms part of the estate and passes under the will, or under intestacy rules if there is no will.

Selling estate property

1. Probate or letters of administration. The land registry and buyers will usually need the executor or administrator to hold a grant before settlement.
2. Transmission. The executor or administrator is registered on the title, or deals with the property as the legal personal representative.
3. The sale. The contract is signed by the executor. In some states the contract can be exchanged before probate is granted, with a condition dealing with it.
4. Settlement. Sale proceeds are paid to the estate and distributed under the will after debts and costs.

Transferring to a beneficiary

Instead of selling, the executor can transfer the property to a beneficiary under the will. Transfers to beneficiaries under a will are often exempt from duty or charged only a concessional amount, depending on the state. Capital gains tax can also be affected by how and when the property is dealt with, so involve the estate's accountant.

Interstate estates

The deceased may have lived in one state and owned property in another. The property is dealt with under the law of the state where it is, and a grant from another state may need to be resealed. We act on estate property in every state.

What clients say

“Wisam has been my solicitor for both purchasing and selling my property.”

Glenn Johnstone, Google review

Questions about deceased estate property

Can an executor sell a house before probate?

In some states a contract can be signed before probate with a condition dealing with it, but settlement usually needs the grant.

What happens to a jointly owned home when one owner dies?

If they were joint tenants, the survivor takes the whole property and it does not form part of the estate.

Is there stamp duty when a beneficiary inherits a property?

Transfers to beneficiaries under a will are often exempt or concessional, depending on the state.

Can you deal with estate property in another state?

Yes. We act on estate property in every Australian state and territory.

Related: Property transfer lawyers | Joint tenants vs tenants in common | Property lawyers