Dealing with a property after the death of a family member can be difficult, particularly when there are legal, financial and family matters to consider at the same time.
If a deceased person owned property in Victoria, the property may need to be transferred to a beneficiary, sold, or dealt with in another way depending on the circumstances of the estate.
The process can involve the Will, probate or letters of administration, the title to the property, mortgages, transfer duty and other legal requirements.
This article explains some of the key conveyancing considerations when dealing with property that forms part of a deceased estate in Victoria.
What Happens to Property When the Owner Dies?
When a property owner dies, the property becomes part of their estate.
The way the property is dealt with depends on factors such as:
- Whether the deceased left a valid Will
- Who has been appointed to administer the estate
- How the property was owned
- Whether there is a mortgage
- Whether the property is to be transferred or sold
- Whether there are beneficiaries
The property does not simply become registered in the beneficiary’s name automatically.
The appropriate legal and conveyancing steps need to be completed.
What Is a Deceased Estate?
A deceased estate generally consists of the assets and liabilities left by a person after their death.
This may include:
- Real estate
- Bank accounts
- Shares and investments
- Vehicles
- Personal belongings
- Other assets
Where the deceased owned real property, the property may need to be dealt with as part of administering the estate.
Who Can Deal With the Property?
The person responsible for administering the estate is generally the executor named in the Will.
If there is no Will, or there is no suitable executor able to act, an administrator may need to be appointed.
The executor or administrator is responsible for dealing with the estate in accordance with the relevant legal requirements.
Beneficiaries do not necessarily have authority to deal with the deceased’s property simply because they are named in the Will.
What Is Probate?
Probate is the legal process by which the Supreme Court of Victoria recognises the validity of a deceased person’s Will and confirms the authority of the executor to administer the estate.
Where probate is required, the executor may need to obtain a Grant of Probate before certain estate assets can be dealt with.
The requirements can vary depending on the circumstances of the estate.
If you are unsure whether probate or another form of authority is required, you should obtain legal advice.
What If There Is No Will?
If a person dies without a valid Will, they are said to have died intestate.
In this situation, an eligible person may need to apply for Letters of Administration to obtain authority to administer the estate.
The distribution of the estate is then governed by the relevant intestacy laws rather than the deceased’s wishes expressed in a Will.
Because intestate estates can be more complicated, legal advice may be particularly important.
What Happens If the Property Is Being Transferred to a Beneficiary?
If the property is to be transferred to a beneficiary rather than sold, the ownership needs to be formally changed.
The process may involve:
- Confirming the executor or administrator’s authority
- Reviewing the property title
- Obtaining the necessary estate documentation
- Preparing the transfer
- Addressing any mortgage
- Considering transfer duty requirements
- Lodging the transfer for registration
The exact process depends on the circumstances of the estate and the way the property is being dealt with.
Does Transfer Duty Apply to a Deceased Estate Property Transfer?
Transfer duty treatment can depend on the circumstances of the transfer.
Certain transfers involving deceased estates may qualify for specific exemptions or concessions, but the requirements must be satisfied.
It is important not to assume that every transfer from a deceased estate is automatically exempt.
Your conveyancer can assist with the conveyancing requirements, while specialist tax or legal advice may be appropriate where the circumstances are complex.
What If There Is a Mortgage on the Property?
If the deceased had a mortgage over the property, the mortgage needs to be considered as part of administering the estate.
The executor or administrator may need to communicate with the lender and determine whether:
- The property will be sold
- The mortgage will be discharged
- The property will be transferred with new finance
- Other arrangements need to be made
The lender may have its own requirements and documentation.
Can a Deceased Estate Property Be Sold?
Yes. A deceased estate property can generally be sold where the person administering the estate has the appropriate authority to do so.
However, the executor or administrator should ensure the estate is legally able to enter into the transaction before signing a Contract of Sale.
Depending on the circumstances, the estate may need to obtain the relevant grant or authority before proceeding.
Can a Beneficiary Sell the Property?
A beneficiary does not necessarily have the authority to sell estate property simply because they are entitled to receive it under the Will.
The person with legal authority to administer the estate generally needs to deal with the property.
If beneficiaries wish to sell or transfer the property, they should obtain appropriate advice about the correct process.
What If There Are Multiple Beneficiaries?
Where more than one beneficiary is entitled to an estate, the situation can become more complicated.
The beneficiaries may have different views about:
- Whether the property should be sold
- Whether one beneficiary should receive the property
- How the proceeds should be distributed
- Whether the property should be retained
The executor or administrator must deal with the estate according to their legal obligations.
If there is a dispute between beneficiaries, legal advice may be necessary.
What Happens If the Deceased Owned the Property With Someone Else?
The way the property was owned is particularly important.
If the deceased owned property as joint tenants, the deceased’s interest may pass to the surviving joint tenant rather than forming part of the estate in the same way as an interest held as a tenant in common.
If the property was owned as tenants in common, the deceased’s share generally forms part of the estate.
The title should therefore be checked before deciding how the property should be dealt with.
What Documents May Be Required?
The documents required will depend on the circumstances.
They may include:
- Death certificate
- Original or certified Will
- Grant of Probate
- Letters of Administration
- Property title information
- Mortgage documents
- Identification documents
- Transfer documents
- Other supporting estate documentation
Your conveyancer can advise you about the documents required for the conveyancing component of the transaction.
How Long Does a Deceased Estate Property Transfer Take?
There is no single timeframe that applies to every deceased estate.
The process may take longer than a standard property transfer because additional documentation and legal authority may be required.
Factors that can affect the timeframe include:
- Whether there is a valid Will
- Whether probate is required
- Whether there is a dispute
- Whether there is a mortgage
- Whether multiple beneficiaries are involved
- Whether the property is being sold or transferred
- Whether additional legal or tax advice is required
Starting the process early can help identify issues before they become urgent.
Common Mistakes to Avoid
Assuming the Property Automatically Goes to the Beneficiary
Being named in a Will does not necessarily mean the beneficiary can immediately deal with the property.
Selling Before Confirming Authority
The executor or administrator should ensure they have the necessary authority before entering into a property transaction.
Ignoring the Title Ownership Structure
Whether the property was held as joint tenants or tenants in common can make a significant difference.
Forgetting About the Mortgage
Outstanding finance should be identified and addressed early.
Assuming There Is No Transfer Duty
Duty treatment depends on the circumstances. Do not assume that every deceased estate transfer is automatically exempt.
Trying to Handle a Family Dispute Through Conveyancing
A conveyancer can assist with the property transaction, but disputes between beneficiaries may require separate legal advice.
Frequently Asked Questions
Do I need probate to transfer a deceased person’s property?
It depends on the circumstances. Probate or another form of authority may be required before the property can be dealt with.
Can a deceased estate property be transferred directly to a beneficiary?
In appropriate circumstances, yes. The required estate and transfer documentation must be completed and the transfer registered.
Can I sell my parent’s house after they die?
If you are the executor or otherwise have the appropriate authority to administer the estate, the property may be able to be sold. You should confirm the legal authority before entering into a Contract of Sale.
What happens if there is no Will?
An administrator may need to be appointed, and the estate will generally be dealt with under the relevant intestacy laws.
Does a deceased estate have to sell the property?
No. Depending on the circumstances, the property may be transferred to a beneficiary or dealt with in another appropriate way.
Can one beneficiary keep the property?
It may be possible for a property to be transferred to one beneficiary, but the transaction needs to be structured correctly and the interests of other beneficiaries need to be considered.
What if the deceased had a mortgage?
The mortgage remains an important part of the estate administration. The lender should be contacted and appropriate arrangements made.
Do I need a solicitor as well as a conveyancer?
A conveyancer can assist with the conveyancing aspects of the property transaction. However, legal advice may be necessary for issues involving probate, contested estates, beneficiary disputes, complex Wills or other legal matters.
How Prox Conveyancing Can Help
At Prox Conveyancing, we assist clients with the conveyancing aspects of deceased estate property transactions across Victoria.
Whether a property is being transferred to a beneficiary or sold as part of the estate, we can help with the property-related process and coordinate with the executor, administrator, estate representatives and other professionals involved.
Because every deceased estate is different, we recommend obtaining appropriate legal or tax advice where required, particularly where there is a dispute, a complex Will or uncertainty about the administration of the estate.
About the Author
Meet Sally
Sally Kwok is a Licensed Conveyancer and the Director of Prox Conveyancing. With more than 16 years of experience in the conveyancing industry, she is committed to helping buyers and sellers navigate Victorian property transactions with confidence. Sally is passionate about providing clear communication, practical guidance and personalised service throughout every stage of the conveyancing process.
👉 Learn more about Sally on our About page.
About Prox Conveyancing
Prox Conveyancing is a Victorian conveyancing practice providing professional conveyancing services for residential property transactions across Victoria. We assist buyers, sellers, investors and families with a wide range of conveyancing matters, delivering personalised service, transparent communication and professional support from contract through to settlement.
👉 Learn more about Prox Conveyancing on our About page.
This article provides general information only and is not legal advice. Every property transaction is unique, and the information above may not apply to your particular circumstances. If you require advice about your specific situation, please contact a qualified legal professional or licensed conveyancer.