- Yes, you can sell a property as an Executor of an Estate.
- The Executor does not receive sale funds, it goes into the Estate pool.
- Sale funds will be distributed in accordance with the Probate.
Selling as an Executor
If you are the Executor of a Will, you have the ability to sell any property which makes up part of a deceased person’s Estate. If a Will a Grant of Probate must be obtained from the Supreme Court of NSW, or if there is no Will a grant of Letters of Administration must be obtained from the Court.
Section 154 of the Conveyancing Act 1919 conveys upon an Executor of an Estate, the power to sell real estate which is owned by a deceased person.
In New South Wales, when a person who has a valid Will dies, an Application for Probate is submitted in the Supreme Court of New South Wales. Once the Probate is granted by the Court the person who is named as the Executor in the deceased person’s Will, can then deal with the Estate in accordance with the Will.
However, a property of a deceased person may be marketed for sale prior to the grant of Probate, and the Executor may even have exchanged on Contracts of Sale, prior to the Probate being granted by the Court, but a settlement cannot occur until such time as the Grant of Probate has been issued by the Court.
When instructing a solicitor or conveyancer to prepare a Contract for Sale of a deceased person’s property you will need to provide a copy of the Grant of Probate, Death Certificate or the Will which is to be used to make an Application for Probate. This way the solicitor or conveyancer can ensure that the person providing the instructions to prepare a Contract for Sale has the authority to do so.
When the Contract for Sale is prepared, the conveyancer or solicitor will include a special condition advising any purchaser that they are selling the property as Executor subject to Probate. The sale will not be completed until such time as the Probate is granted.
Once the property is sold the funds from the sale will then be provided to the Estate, not the Executor, to be distributed in accordance with the Grant of Probate.
Buying from an Executor
If you have found the home you wish to purchase and the agent, conveyancer or solicitor then advises that the vendor on the title has died and the sale is of a deceased estate by an Executor, you may wonder what this means for you.
Your conveyancer or solicitor should request, if they have not already a copy of the Grant of Probate which evidence the Executor has authority to sell the property.
Secondly, you should be aware that if the Probate has not yet been granted by the Court, and there is some delay in obtaining the Grant of Probate for whatever reason, it can push out the settlement date as the sale cannot be completed until such time as the Probate has been granted by the Court.
Thirdly, if you are concerned about whether or not someone died on the property, it is best to request your conveyancer or solicitor to specifically make this request as the agent may or may not be aware if someone died at the property and cannot disclose what they are not aware of.
There can be advantages and disadvantages to purchasing a deceased estate such as:
- Deceased estates are generally motivated sellers so you can get good value for your money
- Often older homes with significant renovation potential
- The condition can be in disrepair especially if it has been empty for a considerable time
- Can be delayed if Probate is not granted at the time of exchanging Contracts
- The beneficiary may not provide details of the property such as if things were council approved or not as they may not have the knowledge
Sale by Public Trustee
There is another type of deceased estate sale which is where there is no beneficiaries of the deceased person and the sale is by the Public Trustee. There is no need in this circumstance for Probate to be provided.
Ultimately, you should seek advice from your conveyancer or solicitor as each Contract for Sale is different.
Expert guidance for buying or selling a deceased estate property
Looking to buy or sell a deceased estate property? Let Coutts Lawyers & Conveyancers guide you through the process. With our experienced team, we can ensure that all necessary documents are provided, and the sale is completed in accordance with the Grant of Probate. Contact us today for expert advice.
ABOUT KAY VITOGIANNIS:
Kay has over 20 years of experience in the Legal industry. She began her journey in CBD Conveyancing firms as a secretary and attained her Advanced Diploma in Conveyancing in December 2010.
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This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.