We often get contacted by surviving spouses, or adult children, whose loved ones have died leaving property in an Australian state or territory, who have the following questions:
“What am I supposed to do with the family home?”
“Can I list the property for sale?”
“Do I need probate to sell the property?”
“What are the costs involved in transferring the property?”
Unless you have previously applied for probate, there is no reason for you to likely know the answers to the above questions. The purpose of this page is to help answer all of your questions regarding real estate and the probate process.
If you want to apply for probate, letters of administration or a reseal in Australia in order to transfer property, the first question to ask yourself is “Who owns the property?”. Whilst this may seem like a simple question, there are several forms of property ownership which will determine this answer and the steps to take next.
In Australia, land is now most commonly held under the Torrens title system. This means that the state in which the land lies creates, records and maintains a register of land holdings, in contrast to the former system of privately held deed documents which serve as proof of ownership.
To determine who owns a property, and in what form that property is held, it is necessary to view the Certificate of Title for the property, or to perform an online property search. The Certificate of Title will list the names of the owners as well as the form of the ownership which will either be:
If the Certificate of Title lists the deceased person as a sole registered proprietor, depending on the state in which the property is held, a Grant of Probate will usually be required in order to transfer ownership of the property. This is also the case if the deceased was the last surviving owner of a jointly-held property that the deceased owned with a person who had predeceased them. for an obligation-free chat on the process and costs involved in obtaining probate, transferring the property to the estate beneficiaries and (if applicable) selling the property.
If the Certificate of Title lists the deceased person and another living person as joint-tenants, then the deceased's share of the property will not usually form part of their estate and (assuming this was the only asset the deceased owned) you will not need to apply for probate of their will to transfer the property to the surviving owner. The surviving owner will generally be entitled to the entirety of the deceased’s share but will nevertheless need to make an application to the relevant State land registry service to be recognised as the sole owner of the property. for a free quote to transfer the property into your name.
If the Certificate of Title lists the deceased as a tenant-in-common owner of a property a Grant of Probate will usually be required in order to transfer their share to another person. to discuss the steps and fees involved in obtaining the Grant of Probate for the purpose of transferring the property, and selling the property (if applicable).
If, after having performed a property search, or having viewed the Certificate of Title for the property, you determine that obtaining probate or letters of administration is necessary, you should consider how the property is to be distributed.
The future of the property distribution will be determined by either
If your loved one left a will, it will usually name a person (“the executor”) who will be in charge of managing the property in accordance with their wishes as stated in their will. This may mean that the executor will be responsible for making the realty available for sale, engaging a real estate agent, and selling the property.
If a will was left, you will usually be required to make an application to the state Supreme Court for a grant of probate in order to facilitate the sale or transfer of the estate realty.
To find out about the costs of associated with obtaining probate in your state, .
If your loved one did not leave a will then State laws will determine how their real estate will be distributed, as well as who will be responsible for the distribution. The Supreme Court grant of Letters of Administration will need to be obtained in order to facilitate transfer of the property if no will was left.
National Probate and Estates Group is the leader in letters of administration application across Australia, and in NSW alone every year from 2018 to 2019 has processed more applications than any other law firm. To obtain a complimentary costing to obtain letters of administration, and to help you with any of your other property needs, .
Do you wish to sell the property? Rent it out? Or live in it?
Your intentions regarding the property will determine the kind of application and costs which will apply in transferring the estate property. For example, you may transfer the estate realty directly to the beneficiaries, or to the executors or administrators. If your goal is to sell the property as quickly as possible, it is generally advisable to transfer the property to the executors or administrators, whereas if you are listed in a will as an estate beneficiary and wish to hold on to the property for a few years then it may be prudent to transfer the property directly into your name as a beneficiary.
The various state titles authorities have different requirements and costs associated with property transfer applications.
Contact the National Probate and Estates Group property lawyers to speak to one of our property experts to find out the most appropriate and cost effective way of administering the estate realty.