You may be acting as the executor of a deceased estate or are otherwise involved as a beneficiary. Amongst the assets of the estate is real property and someone has told you: “Now’s the perfect time to sell!“
But there’s a problem. Probate hasn’t been granted yet, and you’re not sure what you can and can’t do.
Selling subject to probate
If you are the executor, the good news is that you can list a property for sale and even enter a contract for sale before the Grant of Probate is issued. However, legal ownership of the property cannot be transferred to the buyer until you have official authority from the Court by way of a Grant of Probate.
This means that you can market the property and find a buyer, but settlement of the sale can only happen after the Court has issued the Grant.
If you decide to sell the property this way, you must take care to ensure that the sale contract is properly drafted to include a clause that settlement of the sale is conditional on the executor obtaining a Grant of Probate. Without this clause, the estate is exposed to legal and financial risks.
The risk with signing a contract subject to a Grant of Probate is that you might not get the Grant in time for settlement and the Buyer will have the right to rescind (i.e. cancel) the sale contract. This can lead to frustration and stress, wasted time and possibly a lost sale.
Before entering a sale contract, you should:
- Speak with a lawyer experienced in dealing with deceased estates about a realistic timeframe for settlement based on the relevant Court’s processing times.
- Understand the estate. There can be delays in obtaining a grant of probate if:
- The asset pool is large or complicated
- The Will is not well drafted
- There is a challenge to the Will
- Talk to your real estate agent about how best to market the property. Some buyers might be wary if they think there is a risk of delay.
The Court generally won’t issue a Grant of Probate urgently simply because the executor signed a sale contract too early. You must plan accordingly.
Need help dealing with a deceased estate? Call us on 1300 654 590 or email us to ensure administration is effective and above board.
What if the owner signed a sale contract before they died?
If the deceased person (or an attorney under a power of attorney) signed a sale contract before they died but settlement is still pending, then you should seek urgent legal advice in the state or territory in which the property is located about the terms of the contract and the options available to you. There is a risk that settlement can be delayed and that the estate will be in default under the terms of the sale contract.
In some states, settlement can proceed if the deceased person signed a contract for sale and a client authorisation form before they died (see for example, section 59(2) of the Real Property Act 1886 (SA).
If the property is in a state or territory where the law does not allow for a sale to proceed after the deceased person has died, then you may be able to apply for an urgent Grant of Probate which is limited to completing the sale of the property. You could then later file an application for a full Grant of Probate.
What about co-owned property?
If the deceased person held the property as a joint tenant with one or more other people, you will generally not need to obtain a Grant of Probate to deal with that property. In a joint tenancy, each co-owner does not own a distinct share; instead, they each hold an equal interest in the whole property. When one joint tenant dies, their interest automatically passes to the surviving co-owner(s) by the ‘right of survivorship’, regardless of what is stated in the Will. The surviving co-owner(s) can proceed to sell or transfer the property themselves but will need to lodge an application with the land titles registry to record the death of the deceased co-owner.
This automatic transfer does not apply if the property is owned as tenants-in-common. In a tenancy-in-common, each co-owner holds a defined share of the property (which may be equal or unequal), and that share forms part of their estate. When a tenant-in-common dies, their share is dealt with according to their Will (or the intestacy rules, if there is no Will), and a Grant of Probate or Letters of Administration will usually be required before it can be transferred or sold.
How we can help
We’re here to help you. We regularly help executors navigate the process of dealing with real estate in deceased estates. Whether you’re thinking about listing a property for sale or it is already under contract, our lawyers can take the uncertainty out of the process and ensure the sale runs smoothly. Call us on 1300 654 590 or email us to discuss any questions you have about the sale of assets in a deceased estate.
The information contained in this post is current at the date of editing – 26 September 2025.
