he most valuable asset of a deceased’s Estate is often their home. Therefore, in many cases, this property will be sold so its proceeds can be distributed amongst beneficiaries.
Selling a deceased Estate property can be a very emotional and complex task to undertake in an already difficult time. Understanding the Executor’s rights and responsibilities throughout this process will help to alleviate stress and keep things running as smoothly as possible.
At Affinitas Legal, our experienced Estate Planning lawyers are dedicated to helping clients move forward in the wake of a passing. Here, we explain when an Executor is permitted to market and sell property within a deceased Estate in Western Australia (WA).
What does Probate mean?
In short, a Grant of Probate is a legal document that verifies a Will as the deceased’s last Will, and confirms that the nominated Executor is alive, willing and capable of managing Estate administration.
The nominated Executor(s) must apply for a Grant of Probate through the Supreme Court of Western Australia.
Discover the difference between Probate and Letters of Administration.
Can you sell property before Probate is granted?
No, an Executor cannot sell property before Probate is granted. Section 10 of the Administration Act 1903 (WA) states that an Executor is only permitted to sell real estate property in the deceased Estate after Probate has been granted.
As there are often several beneficiaries of a Will, it is common for parties to wish to sell the property as soon as possible once Probate has been granted. That way, all beneficiaries can gain their share of the proceeds with less risk of dispute.
Steps to selling a deceased Estate property in WA
Selling property from a deceased estate in WA involves several legal and administrative stages. Executors should follow these steps carefully to help ensure the sale is valid, compliant, and free from disputes.
Here’s how deceased Estate sales work:
1. Confirm who has the authority to manage the Estate
Start by confirming who is legally entitled to act as Executor or Administrator.
If the deceased left a valid Will, the nominated Executor must apply for a Grant of Probate from the Supreme Court of Western Australia.
If there is no Will, a close family member can apply for Letters of Administration under the Administration Act 1903 (WA).
2. Obtain a Grant of Probate (or Letters of Administration)
The Grant of Probate confirms that the Will is valid and gives the Executor legal power to deal with the deceased’s assets.
The Executor will need to:
- Lodge the application with the Supreme Court of WA.
- Provide the original Will and death certificate.
- Wait for the grant to be sealed and returned, which usually takes several weeks.
Only when this grant is issued may you transfer the property title.
3. Transfer the title to the Executor or administrator’s name
Before an Executor or Administrator can sell a deceased estate property in Western Australia, the property title must first be transferred into their name. This ensures they are legally recognised by Landgate as the person authorised to deal with the property.
Once Probate is granted, the Executor or Administrator can lodge a transmission application with Landgate to transfer the title from the deceased’s name into their own name as the estate’s legal representative.
Only after Landgate completes this title transfer can the Executor legally sign a transfer of land document or proceed with selling the property.
All documentation and processes must comply with Landgate WA requirements for dealing with property owned by a deceased person.
4. Determine the property’s market value
Before listing the deceased Estate property for sale, arrange for an independent valuation or appraisal from a real estate agent.
This helps ensure the property is sold for fair market value, protects the Executor from beneficiary disputes, and provides accurate information for taxation or capital gains reporting.
5. Market and sell the property
You can list and advertise the property for sale before Probate is granted, but the Contract of Sale must include a special condition stating that the sale is subject to the Executor obtaining Probate within a set period (usually six months).
If Probate is delayed beyond that timeframe, the buyer may legally withdraw and have their deposit refunded.
6. Distribute the proceeds and finalise the Estate
After the sale settlement, the Executor must pay any outstanding debts, rates, or taxes from the Estate proceeds. The remaining funds can then be distributed to beneficiaries in accordance with the Will or the Administration Act 1903 (WA).
Keep a clear Estate account record of all transactions in case of audit or beneficiary queries.
7. Seek legal guidance where needed
If the deceased’s assets include trust property, joint ownership, or complex family arrangements, professional legal advice is essential. In some cases, new trustees must be appointed under the Trustees Act 1962 (WA) before a property sale can occur.
How do family trusts affect when a deceased Estate property can be sold?
If the deceased’s property was held within a family trust, it generally does not form part of their Estate, and therefore does not require Probate before being sold or transferred.
This is because assets owned by a trust are legally held by the trustee on behalf of the beneficiaries — not by the individual personally. Therefore, it is governed by trust law rather than Estate law.
In this situation, the trust deed determines how and when the property can be dealt with. The trustee continues to manage the asset in accordance with the deed’s terms, which may include selling the property, distributing proceeds, or transferring it to nominated beneficiaries.
The sale process can usually proceed without waiting for a Grant of Probate, as the property isn’t technically owned by the deceased’s Estate.
However, if the deceased was the sole trustee or appointor of the family trust, additional legal steps may be required.
Under the Trustees Act 1962 (WA), a new trustee must be appointed in line with the trust deed or, if necessary, by court order. The appointment of a new appointor is governed by the terms of the trust deed itself, and if no successor is specified, the Supreme Court may need to intervene. Either process can temporarily delay any property sale.
Executors and trustees should seek legal advice to clarify ownership structures before proceeding with any sale.
Can the real estate property of a deceased person be put on the market before obtaining a Grant of Probate?
In short, yes. As an Executor obtains their title and authority to act from the Will, any Estate administration act they perform before obtaining Probate will be validated upon this Grant of Probate.
This means that an Executor can market the deceased’s real estate property and even enter into a Contract of Sale before obtaining Probate. However, the transfer of land cannot be signed until a Grant of Probate has been issued (an important consideration to make when arranging the settlement date).
Note that in this situation, the Contract of Sale will need to include a special condition stating that the sale is reliant on the Executor obtaining Probate within a certain period of time. This is usually six months from the date of exchange.
If the Executor fails to obtain Probate within the agreed time frame, then the buyer has the right to rescind the Contract of Sale and receive a refund of their deposit.
Does Capital Gains Tax (CGT) apply when selling a deceased Estate property?
CGT can apply when selling a deceased person’s property in WA, depending on specific circumstances such as when the property was bought, how it was used, and when it’s sold.
Let’s take a closer look at each factor affecting whether you may need to pay CGT.
Note: While Australia doesn’t have an inheritance tax, inherited property is still subject to normal CGT rules under the Income Tax Assessment Act 1997 (Cth).
When the property was acquired
If the deceased bought the property before 20 September 1985, it is generally exempt from CGT because it was acquired before the tax was introduced.
However, if significant improvements or extensions were added after that date, those works may be treated as a separate taxable asset.
If the property was purchased on or after 20 September 1985, it is considered a post-CGT asset, and tax may apply on any increase in value from the time the deceased acquired it.
Whether the property was the deceased’s main residence
How the property was used also matters. If the property was the deceased’s main home and never rented out or used to earn income, the sale will usually be fully exempt from CGT.
However, if the property was used to generate income — such as being rented out — only part of the sale may qualify for the exemption.
Who sells the property
Responsibility for CGT depends on who sells the property. If the executor sells it to finalise the estate, any gain or loss is included in the estate’s tax return.
However, if the property is transferred to a beneficiary who later sells it, the beneficiary must report the gain or loss on their personal tax return.
When the property is sold
Timing plays a major role. If the property is sold within two years of the deceased’s death, any capital gain is normally exempt, even if it is rented out during that period.
The Australian Taxation Office (ATO) can extend this two-year period in some cases, such as delays caused by the Probate process or disputes among beneficiaries.
Residency status
Residency can also affect eligibility for exemptions. If either the deceased or the beneficiary is a foreign resident for tax purposes, the main residence exemption is restricted or may not apply at all.
Gain personalised support with your Probate application in WA
If you have been nominated as an Executor and require a Grant of Probate before selling a deceased’s Estate property, it’s important to obtain legal advice as soon as possible to ensure you know your rights and responsibilities.
As well as providing tailored information on legislation and fees, your lawyer can guide you through the Probate application process.
At Affinitas Legal, our dedicated Probate lawyers are here to support you in accessing and administering a deceased Estate. Get in touch with our team today for tailored assistance and fixed-fee applications.
Disclaimer
General Advice Warning
The information contained in this article is general in nature and does not take into account your personal situation. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a suitably qualified lawyer.
All legal and other matters referred to in this article are of a general nature only and are based on Affinitas Legal’s interpretation of laws existing at the time and should not be relied upon in place of appropriate professional advice. Those laws may change from time to time, and the information contained herein may be out of date.
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Although every effort has been made to verify the accuracy of the information contained in this article, Affinitas Legal, its officers, employees and agents disclaim all liability (except for any liability which by law cannot be excluded), for any error, inaccuracy in, or omission from the information contained in this article or any loss or damage suffered by any person directly or indirectly through relying on this information.
