Here is a guide to assist an Executor of a Deceased Estate to sell property owned by the deceased. 

The need for Probate in Victoria 

If the Estate contains a property in Victoria, the Executor has to apply to the Supreme Court of Victoria for a Grant of Probate of the Will. This in effect ‘confirms’ the Will and the executor can then legally transfer the property in accordance with the terms of the Will. 

If there is no Will, then the next of kin must apply to the Supreme Court for Letters of Administration before the property can be dealt with. 

Although you don’t need a lawyer to apply for Probate or Letters of Administration, it is recommended to engage one who specialises in Wills and Estates matters. It will be easier and quicker for all parties involved.

It could take up to three months to gather all the documents required to make an Application for a Grant of Probate. Assuming there are no requisitions from the Court, it takes about four weeks from lodging the Application to the Grant of Probate. 

If the deceased owned a property as a joint tenant, Probate is not required as the property will pass to the survivor and will not form part of the deceased’s estate.

The duties of an Estate Executor

Once Probate has been issued, the Executor effectively becomes the legal owner of the deceased’s assets. Their role is to pay the liabilities of the deceased and collect the assets, so they can be distributed in accordance with the terms of the Will. 

It is not mandatory that Estate property is sold. A property can be transferred ‘in specie’ to a beneficiary, as there may be tax benefits – such as deferring capital gains tax, or sentimental reasons why a beneficiary would like to receive the property. The transfer should be free of stamp duty. 

However, most Estate properties are sold, particularly where there are multiple beneficiaries. 

In most cases an auction is the better sale option

Estate property is usually sold by public auction following a four-week marketing campaign. This is an open and transparent process so all parties can see how the property was sold. An auction brings all buyers together at one time, and as there is no cooling off period, the sale is unconditional. 

When selling a property, the Executor should obtain a formal valuation from a Licenced valuer. A valuation can help set the reserve price at auction and be relied on to support the sale price if a beneficiary claims the property was undersold. 

When managing an Estate property, we prefer to advertise as “Executors Auction” (or similar words). We find this attracts more people to the property – hoping to find a bargain. The more people that inspect, the more competition there will be at the auction and the higher the ultimate sale price will be. 

Preparing the property for sale 

While waiting for Probate to be granted, the property can be prepared for sale including removal of household contents, undertaking presentation works and obtaining marketing proposals from at least two local estate agents.

The property can be sold prior to the issue of Probate, but the Contract of Sale should be made conditional on Probate being granted.

Research possible tax implications 

If the property was the deceased’s principal place of residence and is still held in the Estate after specific time periods, there are tax consequences. The ATO allows up to two years before Capital Gains Tax may apply, and in Victoria, the exemption from Land Tax and Vacant Residential Land Tax (if vacant) allows up to three years from the date. 

Consider using a vendor advocate to guide you through the process 

Outsourcing the role of managing the whole sale process to a vendor advocate makes good sense to both the executors and the beneficiaries.

• having an independent specialist protects the Executor from criticism regarding the sale process;
• ensures that presentation works are done efficiently to get property to market sooner and achieve the best sale price;
• ensures that the best agent is selected for the sale;
• relieves the Executor from the stress of managing the sale and allows them to focus on other aspects of administering the Estate, and 
• beneficiaries can have confidence in the sale process.

Tower Property Advisory can fully manage the sale process for executors offering:

Expert Guidance

Having managed the sale of over 4,000 properties around Australia, we have the experience to ensure that each property is sold efficiently and for the best price.

Comprehensive Support

From selecting the best, clearing household goods, managing property presentation through to auction strategy, we handle every detail.

Cost Effective Solutions

We negotiate the agents commission down to save costs and can fund all property presentation improvements to maximise the sale price.

For an obligation free consultation contact us