Can I sell a deceased’s estate’s home before probate is granted in WA?

Article By

Jason O’Meara

Debt Recovery Services Manager / Senior Associate

Uncategorized

Often one of the biggest assets of a deceased’s estate is their home.  In many cases, there are multiple beneficiaries to the estate and the home must be sold so the proceeds can be distributed amongst all beneficiaries as outlined in the will.

In order to legal sell any property of a deceased’s estate in Western Australia, first the executor of the estate must obtain a grant of probate from the Supreme Court of WA.

Section 10 of the Administration Act 1903 (WA) states that an executor is entitled to, amongst other powers, sell real estate in the estate of the deceased person after probate has been granted in the course of the administration of the estate.

What is probate?

Probate, as defined by the Public Trustee is “the process of proving and registering in the Supreme Court the last Will of a deceased person”. An application must be made to the Supreme Court and once approved, the Probate Office will issue a certificate to confirm the grant of probate.

It can take weeks and even months for a grant of probate by the Supreme Court of Western Australia and for various reasons the executor appointed in the will of the deceased may need to sell the property in the estate of the deceased including real estate for the payment of debts or distribution to beneficiaries.

Can I put the deceased’s estate’s property on the market before grant of probate?

The simple answer is yes.

The law is clear that an Executor gets their title and authority to act from the will and not from the Grant of Probate. Any act of an Executor prior to the Grant of Probate, in the due course of administering the estate, will be validated retrospectively upon the Grant of Probate.

An Executor may therefore enter into a contract for the sale of estate real property. The actual transfer of land, however, can only be signed by the Executor after the Grant of Probate.

For this reason, a special condition should be incorporated into the contract for the sale and purchase of the land disclosing the requirement for Probate and making the contract subject to the Grant of Probate.

The settlement date should be specified by a period measured by reference to date of the Grant of Probate.

Do I need advice from a lawyer?

You can apply for a grant of probate yourself directly through the Supreme Court of WA’s online system or by purchasing application forms, or you may engage a lawyer to make an application on your behalf.

If you need assistance with the grant of probate application or to draft special conditions in sale and purchase property contracts, it is recommended to obtain legal advice. An experienced lawyer can help navigate any problems that may arise and resolve them quickly, potentially avoiding further legal costs and lengthy delays.

 

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