Dealing with Death

Selling a property can sometimes be a challenging experience. When dealing with land owned by a loved one who has recently passed away, it can be even more daunting, especially if you are grieving and wishing they were still here. But by following a few simple steps, the process can be a little easier for loved ones to handle the estate.

If you are thinking of selling property that was held by a person that has passed away, there are a few things to consider.

If you have been appointed as an Executor, one of the first things to do is check the Certificate of Title. This will show details of who currently owns the property, how the land is held (if more than one owner), and any encumbrances (i.e. mortgages or easements) that are registered against the property.

  • Where land is held in the deceased’s name only: You must obtain a Grant of Probate (if there is a Will) or Letters of Administration (if there is no Will). These documents must be lodged together with a Transmission Application at the Lands Titles Office, accompanied by the standard lodgement fee.

 

  • If the land is held by more than one person: The Certificate of Title will indicate the ‘mode’ of holding (i.e. whether the land is held as either Joint Tenants or Tenants in Common). The mode of holding will affect how and when the land can be dealt with after your loved one has passed away.
    • If the land is held as Joint Tenants: The rights of survivorship applies. The surviving joint tenant automatically absorbs the deceased’s interest in the property, and this property will not form part of the deceased’s estate. Despite this automatic default in ownership, the death needs to be noted on the Certificate of Title before any further dealings with the property can take place. Your conveyancer must complete an Application to Register Death and provide a certified copy of the Death Certificate, along with the standard lodgement fee.
    • If the land is held as Tenants in Common: There is no right of survivorship. Upon the death of a tenant in common, the deceased person’s share is distributed according to their Will. Or, if there is no Will, in accordance with the laws of intestacy. This means that before the land can be dealt with or transferred, Probate or Letters of Administration must be granted. They are then lodged with a Transmission Application at the Lands Titles Office.

Once the Application for Probate or Letter of Administration documents are lodged at the Probate Registry, it can take 4 to 6 weeks for them to be granted. Your Conveyancer can help you to work out the timeframes involved, and what else needs to happen prior to settlement if you plan to sell the property.

But who signs the land contract?

The Real Estate Agent must ensure the right person, who has authority to ‘deal’ with the land, signs any sale contract. This could be done by viewing the Will or some other documentation from solicitor showing who has been appointed as Executor.

Where a Grant of Probate has not yet been issued, but the Will appoints an Executor, then the Executor may sign a land contract, provided that settlement is subject to a Grant issuing to the Executor.

Once Probate or Letters of Administration have been granted, a stamped copy of the Grant of Probate (including the Will) and Registrar’s Certificate should be provided to your Conveyancer so they can finalise settlement.

What happens after settlement?

Generally, the Executor of an Estate must allow a period of 6 months after Probate has been granted before they can distribute the Estate. This is to allow sufficient time for a claim to be made by anyone else who may have an interest in the Estate. If the Executor is certain there is no one else who could make a claim, they may decide to take this risk and distribute the Estate sooner.

Once this has been decided, the Executor will provide instructions to the Conveyancer on how the settlement funds are to be distributed.

 

At Marshall Conveyancing, we are here to help you. Please get in touch with us and allow one of our Conveyancers guide you through the process.

 

Author – Fiona Woolfitt 

 

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