Can an Executor Sell Property Before Probate Is Granted?
When a deceased estate in Victoria includes property, an executor may want to begin the sale process before probate has been granted. This raises an important question: how far can the executor proceed while probate is still pending?
Preparing a property for sale, marketing it, entering into a Contract of Sale and completing settlement are different stages. Whether an executor can proceed will depend on factors including how the property was owned, what the Will provides and whether probate is required to deal with the property.
Understanding these issues before committing the estate to a sale can help avoid complications later in the transaction.
What Does Probate Allow an Executor to Do in Victoria?
Probate is the process through which the Supreme Court of Victoria recognises a Will as valid and confirms that the executor can act under it.
Where a grant is required, it provides formal authority for the executor to deal with assets forming part of the deceased estate.
This becomes particularly important where the estate includes real property that needs to be sold or transferred.
How Was the Property Owned?
Before considering a sale, the executor should establish how the deceased owned the property.
The property may have been:
Owned solely by the deceased
Owned with another person as tenants in common
Owned with another person as joint tenants
In Victoria, a grant is required where the deceased owned real estate solely or as a tenant in common.
Jointly owned property may be different. Where real estate was held as joint tenants, the deceased's interest may pass to the surviving joint owner and an application can be made through the land titles system to transfer the property into the survivor's name.
The Will should also be reviewed to understand what it provides in relation to the property and the administration of the estate.
Can an Executor Prepare or Market Property Before Probate?
There may be practical steps an executor can take while probate is pending, depending on the circumstances.
These may include:
Obtaining a property valuation
Speaking with a real estate agent
Gathering relevant property documents
Arranging appropriate maintenance or preparation
Considering the likely timing of a proposed sale
However, preparing or marketing a property is different from legally committing the estate to a transaction.
Before entering into a binding sale, the executor should understand the probate requirements, the terms of the Will and whether the estate is in a position to proceed.
Can an Executor Sign a Contract Before Probate?
Whether an executor should enter into a Contract of Sale before probate is granted requires careful consideration.
In some circumstances, a proposed transaction may be structured so that completion depends on probate being obtained. However, a condition relating to probate should not be treated as an automatic solution.
The proposed contract, the status of the probate application and the executor's ability to complete the transaction should be considered before the estate is legally committed.
Obtaining legal advice before signing can help the executor understand the obligations being accepted and what may happen if probate is not available within the expected timeframe.
Can Settlement Take Place Before Probate Is Granted?
This is where the distinction between arranging a sale and completing the legal transfer becomes particularly important.
Where the deceased owned Victorian real estate solely or as a tenant in common, a grant is required to deal with that property.
An executor should therefore avoid assuming that because a property can be prepared or marketed while probate is pending, settlement can necessarily proceed before the required grant has been obtained.
The probate position and settlement requirements should be considered before a settlement date is agreed.
What If Probate Has Not Been Granted When the Property Is Ready to Sell?
The time required to obtain probate can depend on the circumstances of the application.
If the estate is considering a property sale while probate is pending, the executor should take the status of the application into account before agreeing to contractual deadlines.
A delay in obtaining probate could affect the proposed settlement timetable if the grant is required before the property can be dealt with.
Planning the probate and property aspects of the estate together can reduce the risk of committing to a timeframe the estate may not be able to meet.
What Should an Executor Check Before Selling Estate Property?
Before progressing with a deceased estate property sale in Victoria, an executor should consider:
How was the property owned? Determine whether it was held solely, as tenants in common or as joint tenants.
What does the Will provide? Review any provisions relevant to the property and its beneficiaries.
Is a grant of probate required? Establish whether probate is needed to deal with the deceased's interest in the property.
What stage of the sale is proposed? Preparing, marketing, contracting and settling are different steps.
Is the proposed timeframe realistic? Consider the status of the probate application before committing to settlement deadlines.
Has legal advice been obtained before signing? Understand the estate's position before entering into a binding Contract of Sale.
How Ace Legal Services Can Help
Ace Legal Services can assist executors in Victoria with probate and estate administration, including issues involving property forming part of a deceased estate.
We can help review the Will and property ownership, explain the probate requirements that may apply and assist with the legal considerations involved when estate property is proposed to be sold.
Where a property transaction is involved, addressing the probate and conveyancing requirements together can help the executor understand what needs to occur before the transaction can proceed to settlement.
Final Thoughts
An executor may be able to take practical steps towards preparing or marketing a deceased estate property while probate is pending. However, those steps should be distinguished from entering into a binding sale and completing the legal transfer of the property.
For Victorian property owned solely by the deceased or as a tenant in common, a grant is required to deal with the deceased's interest. The property's ownership, the terms of the Will, the probate position and the proposed timing of the sale should therefore be considered before the estate is committed to a transaction.
Planning to sell property from a deceased estate in Victoria? Speak with Ace Legal before committing to a sale so you understand the probate, estate administration and property requirements that may apply.
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