Can I Sell Property of a Deceased Estate Before Probate is Granted in NSW?

When a loved one passes away, dealing with their estate can be a complex and sometimes emotional process. One of the most common questions that arise during this time is whether it is possible to sell a property from a deceased estate before probate is granted in New South Wales (NSW). In this blog post, we’ll break down the legalities surrounding this situation to help you understand the process better.

Understanding Probate and Deceased Estates

Before diving into the specifics of selling property, let’s first define what probate is. Probate is the legal process that confirms the validity of a deceased person’s Will and authorises the executor to administer the estate in accordance with the Will. In NSW, the probate process is typically overseen by the Supreme Court.

Once probate is granted, the executor or administrator of the estate has the legal authority to manage and distribute the assets as specified in the Will. However, what happens if you want to sell the property before probate is granted? Let’s explore.

Can You Sell a Property Before Probate is Granted?

Technically, you cannot sell a deceased person’s property before probate is granted unless you are specifically authorised by the Court or have the legal right to act on behalf of the estate. The main issue here is that without probate, you don’t have the legal authority to deal with the property, and the property is still considered part of the deceased's estate.

That said, there are a few exceptions and considerations:

1.Executor’s Role and Pre-Probate Actions

If you are named as the executor of the will, you may not be able to sell the property before probate is granted. However, you can take certain preliminary steps to prepare the property for sale, such as securing it, conducting valuations, or arranging necessary repairs. Once probate is granted, you will have the authority to proceed with the sale.

2.Selling Under a Grant of Letters of Administration

If there is no will and the person has died intestate, a person must apply for a "Letters of Administration" before they can deal with the property. This process is similar to probate and grants the individual the right to manage and distribute the deceased's estate.

In both cases, without probate or letters of administration, the property remains in limbo, and you cannot legally sell it.

3.Court Approval for Sale Before Probate

In some circumstances, it’s possible to apply to the court for permission to sell the property before probate is granted. This usually happens if there’s an urgent need to sell, for example, to cover ongoing expenses related to the estate or to prevent the property from deteriorating. In these cases, the court will assess the situation and determine if a sale is necessary or in the best interests of the estate.

4.Making the Contract Subject to Probate

In some cases, you can enter into a sale agreement "subject to probate," meaning the sale will only proceed once probate is granted. This allows the seller (or executor) to secure an agreement while waiting for legal authority to transfer the property. However, the buyer assumes some risk, as the sale could be delayed or voided if probate is not granted. It’s important for both parties to understand the risks, and legal advice should be sought before proceeding with this option.

What Happens If You Sell Without Probate?

Selling a property without probate, unless authorised by the court or under exceptional circumstances, can lead to legal issues. For example, the buyer may not receive clear title to the property, and the sale could be invalid. Furthermore, the executor may face legal consequences for not following the proper procedures. It’s always important to ensure that probate has been granted before proceeding with the sale.

Final Thoughts

While selling property from a deceased estate before probate is granted is generally not possible in NSW, there are exceptions and circumstances where court approval might be obtained. It's crucial to consult with a solicitor or an estate lawyer before making any decisions to ensure you’re following the correct legal process.

If you’re unsure about how to proceed with selling property from a deceased estate, seeking professional advice is always the safest option. Handling the estate correctly not only ensures that the property is legally sold, but it also respects the wishes of the deceased and avoids future legal disputes.