In NSW it is possible for an Executor of a Deceased’s Estate to market, and even prepare to sell a property which is part of the Deceased’s Estate prior to Probate being granted. However, when selling a property subject to Probate, important considerations must be taken into account to ensure the sale conforms with NSW law.
What is Probate?
In NSW, where a person dies after having made a Will, the Executor of that Will must apply to the Supreme Court of NSW (Court) to be granted Probate. Probate is an order from the Court, declaring the Will to be valid and authorising the Executor named in the Will to deal with the Deceased’s Estate in accordance with the Will, which can include the sale of property.
Subject to the Court’s processing time frame at the time of lodgement, an Application for Probate can take a matter of weeks to months to be considered by the Court.
Important Considerations: Commencing the Sale of Estate Property Subject to Probate
Prior to the Court granting Probate, a proposed Executor may prepare to sell an Estate’s property. This includes engaging a Solicitor to draft a Contract for Sale, marketing the property for sale, and even exchanging contracts with a purchaser.
Once contracts are exchanged, the sale cannot be completed until a Grant of Probate has been made by the Court, authorising the Executor named in the Contract for Sale to deal with the property in accordance with the terms of the Deceased’s Will.
As such, a Contract for the Sale of Estate property that is subject to Probate must be drafted carefully to ensure that a potential purchaser is aware that:
- the person selling the property is acting in their capacity as Executor for the Estate;
- the property is part of a Deceased’s Estate which is awaiting Probate; and
- the sale cannot be completed until Probate has been granted and the property has been transferred into the Executor’s name.
What Happens After Probate is Granted?
Once a Grant of Probate is provided by the Court, the Executor named in the Grant of Probate can then apply to NSW Land and Registry Services to have the property transferred into their name (to deal with the Estate’s property in their capacity as Executor). This is known as a Transmission Application. Once the Transmission Application is registered, the title to the Estate’s property will be transmitted into the name of the Executor, and the sale of the property can be completed.
The funds from the sale of the property must then be distributed in accordance with the Grant of Probate.
Need Help?
Selling property as the Executor of a Will can be a daunting experience. Willis & Bowring is here to guide those buying and selling Estate property through this process to ensure your legal obligations are met. Should you have a query regarding this article, or require assistance, please contact the property team at Willis & Bowring today.