The 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. But can an Executor sell property before Probate?
Dealing with a deceased Estate can be a very emotional and complex task to undertake in an already challenging time. Understanding the Executor(s) rights and responsibilities throughout this process will help to alleviate stress and keep things running as smoothly as possible.
Below, we explain when an Executor is permitted to market and sell property within a deceased Estate in Western Australia.
First, 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 Probate through the Supreme Court of Western Australia.
Discover the difference between Probate and Letters of Administration.
Can an Executor sell property before Probate?
No, an Executor cannot sell property before Probate. 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.
Can the deceased’s real estate property 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 prior to 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.
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 the deceased’s property, it’s important to seek personalised legal support 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.
