Selling a property from a deceased estate: what executors need to know in QLD and NSW

For most executors, selling the family home is the largest task in the estate – and the first time they have ever done it.

When someone dies leaving a house or a unit, the property is usually the largest single asset in the estate. It is also the one that takes the longest to deal with and often the one that has to be resolved before anything can be distributed to the beneficiaries.

Executors are rarely professionals. They are usually a spouse, an adult child or a close friend, doing this once, at a difficult time, alongside everything else. The questions that come up are practical ones: can the property be sold now or does something have to happen first, whose name does it go into, who pays the rates and the insurance in the meantime and what happens if the beneficiaries do not agree.

This article sets out how the process works in Queensland and in New South Wales. The two states differ in several respects, so each is dealt with separately where it matters.

Do you need probate before you can sell?

For real property, yes. To transfer any real estate from a deceased estate in Queensland or New South Wales, the executor needs a Grant of Probate, or Letters of Administration where there is no will. There are no exceptions for small properties.

This is different from the position for other estate assets. Some banks will release funds without a grant where the balance is modest and superannuation with a valid binding nomination may pass directly to the nominated person. Land is not treated that way. The land registry will not transfer title without the grant.

There is one situation where the property may not form part of the estate at all. Where the property was held as joint tenants, it passes automatically to the surviving owner by right of survivorship and probate is not required for that transfer. Where it was held as tenants in common, the deceased’s share does form part of the estate.

We have written separately on what happens to a property when a co-owner dies.

Can you sign a contract of sale before probate is granted?

The grant is needed to transfer the title. It is not needed to speak to an agent. An executor can obtain appraisals, prepare the property and put it on the market while the application is still with the court.

A contract can also be entered into after the deceased’s passing and before the grant issues. What cannot happen is settlement. Settlement cannot occur until the Supreme Court has granted probate and that is true in both Queensland and New South Wales.

That is the reason to have the contract looked at before it is signed rather than after. The settlement period and any special conditions dealing with the grant, are what protect the estate if the court takes longer than the parties expected. We are always happy to review a contract, suggest any special conditions and talk the executor through it before anything is signed.

Getting the grant: Queensland

Probate applications in Queensland go to the Supreme Court of Queensland. The general steps are:

1. Locate and review the original will and obtain the death certificate.
2. Publish a notice of intention to apply and wait a minimum of 14 clear days.
3. Prepare the application, including an inventory of all estate assets and liabilities.
4. File the application with the Supreme Court of Queensland.
5. Await processing – typically 4 to 8 weeks from filing, depending on court workload and the accuracy of the application.

Queensland does not mandate probate for every estate and some estates can be administered without a grant where assets are small or all jointly held. Where the estate holds real property, that exception does not assist: the grant is still needed to transfer the land.

Getting the grant: New South Wales

Most uncontested probate applications in New South Wales are lodged online through the NSW Supreme Court Online Registry. The steps are broadly similar to Queensland:

1. Obtain the death certificate and locate the original will.
2. Publish a probate notice on the NSW Online Registry, which triggers a mandatory 14-day waiting period.
3. Complete and lodge the online application, including the executor’s affidavit, which the system generates for printing, signing and re-uploading.
4. Pay the applicable court filing fee.
5. Await processing – typically 4 to 8 weeks, though delays occur during peak periods.

Executors in New South Wales should lodge within six months of the date of death. Where an application is lodged later, the executor’s affidavit must explain the delay and the court may query it. For an executor who has spent months deciding whether to sell, that timing matters.

When the property is in one state and the executor is in the other

This is a common situation for families in the Coolangatta and Tweed corridor, where it is not unusual to hold property in Queensland, bank accounts in New South Wales, or assets across both.

A Grant of Probate issued by one state’s Supreme Court only has legal force in that state. To deal with assets in the other state, the executor must apply to have the grant resealed in that jurisdiction. Resealing is simpler and less expensive than obtaining a fresh grant, but it is a separate application to the other state’s court and it takes its own time.

For an executor selling a property across the border, that is a step to build into the timetable rather than discover halfway through.

Whose name does the property go into before it is sold?

Before the property can be sold, the deceased has to come off the title. Documents are lodged with the relevant state land registry to remove the deceased’s name and record the executor in their place. The position is the same in Queensland and in New South Wales and it is the same in both respects that matter: the step has to be completed before settlement and it cannot be done without a grant of probate.

Recording the executor on the title does not give the executor the property. It records who has authority to deal with the land.

We recommend attending to this as soon as the grant issues, whether or not the property is being sold. Once it is done, rates notices, body corporate levies and insurance correspondence are addressed to the executor rather than to the deceased, which is how bills stop going unanswered and costs stop accumulating unnoticed.

Who pays the rates and insurance until the property sells?

Between the date of death and settlement, the property still has to be maintained, insured and paid for. Rates continue. Body corporate levies continue. A property that has been vacant since the owner went into care may need attention before it can be presented for sale at all.

Tell the insurer about the death as early as possible and get written confirmation that cover continues and in whose name. Most home policies contain an unoccupancy clause that limits or removes cover once the property has been empty for a continuous period and a claim can be declined on that basis even though the premiums are still being paid. A house that will sit empty for months may need a different policy altogether.

Rates, body corporate levies, utilities and insurance premiums keep falling due and as a general rule they are payable by the estate and met out of estate funds. There is an important exception. Where the will gives the property to a particular person as a specific gift, the burden of those holding costs generally shifts to that person rather than remaining with the estate. It is worth establishing early which situation applies, because it changes who is paying and who should be making decisions about the property.

Where the estate has no accessible cash before the grant, an executor who pays out of their own pocket is entitled to be reimbursed, provided the expense was properly incurred and the receipts are kept.

An empty house also needs someone to collect the mail, keep the services connected, maintain the grounds and inspect it as often as the insurer requires. A market valuation as at the date of death is usually worth obtaining: it establishes the cost base if capital gains tax turns out to apply and it gives the beneficiaries an independent reference point if the sale price is questioned later.

Is capital gains tax payable when an estate sells a property?

Sometimes. There may be capital gains tax payable by the estate on the sale. Where the property is transferred to a beneficiary rather than sold, the liability may pass to that beneficiary instead. And where the property was the deceased’s principal place of residence, an exemption may be available.

Which of those applies depends on the facts of the particular estate and the rules are not intuitive. It is a messy area and it is one where the consequences of getting it wrong tend not to surface until well after the estate has been finalised and the money has been distributed.

We do not give tax advice, but we do make sure it is obtained. Part of acting for an executor is identifying where the tax position needs an expert view and recommending it be sought at the right time, which is before the property is dealt with rather than afterwards.

After the grant

The grant is the beginning of estate administration, not the end of it. Once it issues, the executor must collect the assets, pay the debts, prepare and lodge tax returns for the deceased and for the estate and then distribute what remains to the beneficiaries. For straightforward estates, the full process typically takes six to twelve months from death to final distribution.

A property sale sits inside that timeline rather than alongside it. Executors who understand that early tend to have easier conversations with beneficiaries who are waiting.

Frequently asked questions