Selling a house after the death of a loved one can be daunting and emotional. You may wonder if you have the legal authority to sell the property and what steps to take.
One of the most common questions is: Do you need probate to sell a house in Australia? This article will explain what probate is, when you need it, and how it affects home sales in Australia.
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Probate is a legal process that verifies the last will of a deceased person and confirms the authority of the executor named in the will. It involves the court reviewing the will, ensuring it’s valid, and giving the executor permission to administer the deceased’s estate.
In the context of selling a house in Australia, probate is crucial because it gives the executor the legal right to deal with the deceased’s property, including selling it.
If there is no will, then you will need to obtain Letters of Administration in order to deal with the estate of the deceased.
Do You Need Probate To Sell A House?
Yes, you typically need a Grant of Probate to sell a house that belonged solely to the deceased.
The Grant of Probate is the court’s recognition that the will is legally valid and the executor is authorised to deal with the estate, including selling property.
Without a Grant of Probate, the executor may be unable to sell the property, primarily if it was solely owned by the deceased.
Moreover, potential buyers and real estate agents typically request to see the Grant of Probate to ensure the executor has the legal right to sell the property.
The Land Titles Office also often requires the Grant of Probate to transfer the property’s ownership. Therefore, probate is essential for selling a deceased person’s property in Australia.
However, if the parcel was jointly owned and the other owner is still alive, the property often automatically passes to them, and probate is optional.
How Can You Obtain a Grant of Probate?
Now that you know the answer to the question: ‘Can the executor sell a house in probate?’ It’s about time that you knew how to get a grant of probate.
Identify the executor of the estate. The executor is the person named in the will responsible for administering the estate. If there is no will, the court will appoint an administrator.
Gather the necessary documents. The following documents will need to be submitted with the application for probate:
- The original will (and any codicils)
- The death certificate of the deceased person
- An inventory of the deceased person’s assets and liabilities
- An affidavit from the executor
Apply for probate. The application for probate must be filed with the Supreme Court of the state where the deceased person lived.
Pay the probate fees. The probate fees vary depending on the value of the estate.
Receive the grant of probate. If the will is valid, the court will grant probate, and the executor will be given a copy of the grant.
What Happens If I Sell a House Without Probate?
Can you sell a house before probate?
A grant of probate is required before a house can be sold if the deceased person owned the house in their name.
There are a few exceptions to this rule.
For example, if the deceased owned the house with their spouse as joint tenants, the surviving spouse does not need to go through probate to sell the house.
If probate is required, the estate executor will need to apply for a grant of probate from the Supreme Court of the state where the deceased person lived.
The application process can take several weeks or even months.
Once a grant of probate has been issued, the executor can sell the house.
The executor will need to provide the buyer with a copy of the grant of probate.
A Comprehensive Estate Management Journey with Walker Pender
A client came to Walker Pender having inherited a property she wished to sell. Understanding the potential complexities and legal intricacies involved, she sought our expert help to ensure everything from the probate application to the final sale would be legally sound.
We promptly helped her apply for a Grant of Probate, meticulously documenting the estate’s assets and submitting the application to the appropriate court.
Once probate was granted, we guided her through the selling process, providing clear advice and ensuring she fully understood each step. Our conveyancers were also able to assist with the sale of the property.
This proactive approach provided a seamless transition, enabling a worry-free, legally-binding sale of her inherited property, safeguarding her future from potential complications.
Do You Need Probate To Sell A House in Australia?
Do you need probate to sell a house in Australia?
At Walker Pender, we’re here to guide you through every step of the process, ensuring everything is legally binding and hassle-free. Don’t navigate this complex journey alone – reach out to Walker Pender today for expert estate management.
