Selling the deceased's home prior to probate being granted
Mar 18, 2017It is not uncommon that the most significant asset of a Deceased’s Estate is their home. It is also not uncommon that there are a number of beneficiaries entitled to a share of the Estate, which will of course require the Deceased’s home to be sold and the proceeds of the sale distributed between the beneficiaries.
However, the executors handling the Estate cannot effect any sale of real property (such as the family home) until the Supreme Court has granted probate (that is, until the Court has validated the Deceased’s Will, giving the executors the authority to distribute the assets to the beneficiaries in accordance with the Will).
Once probate is granted, the executor then has the power to transfer the title of the home from the Deceased to the new owner.
Obtaining probate can take some months, depending on the complexity and size of the Estate, but at the same time, executors are often keen to have the home put on the market as soon as possible.
So … can you apply for probate AND market the home at the same time? YES.
Whilst the title of the property remains in the Deceased’s name until probate is granted, the executors can commence marketing the sale of the property by preparing a Contract for Sale as follows:
- the executors are named on the front page of the Contract as the vendors selling the property;
- the title search within the Contract still notes the Deceased as the registered proprietor;
- a special condition provides that:
– the purchaser acknowledges that the vendors are selling in their capacity as executors of the deceased registered proprietor’s Estate;
– the sale is conditional on probate being granted within a specified period of time (typically 6 months from the date of exchange); and
– settlement will take place 14 days after the vendors notify the purchasers that probate has been granted; and - at settlement, the executors will provide to the purchaser a Transmission Application (transferring title from the Deceased to the executors) and a Transfer (transferring title from the executors to the purchaser).
If, for whatever reason, the executors are unable to obtain probate within the specified period of time (for example, it may be a particularly complicated estate requiring specific evidence to be filed with the Court), then the purchasers would have the right to rescind (that is, pull out of) the Contract and obtain a refund of their deposit.
If you are the purchaser of a deceased estate – pay particular attention to the names on the front page of the Contract and the names on the title search within the Contract, as well as any special conditions stating that the property is conditional on a grant of probate. You may be waiting some time until probate is granted and you can finally settle your purchase and move into the property.
Contact the Shire Legal team if you have any questions.
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