In NSW, an executor can list a deceased estate property for sale and exchange contracts before probate is granted, but settlement cannot occur until the Supreme Court has issued the grant. Until then, the executor has no legal authority to transfer title.
This timing creates real risk if probate is delayed or contested. Empower Probate Lawyers advises executors selling NSW estate property at every stage. This guide covers what is permitted before probate, the contract risks, and how the title transfer actually works.
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What “Selling Before Probate” Actually Means in NSW
Selling a deceased estate property involves three distinct stages, and the rules differ at each one.
The first stage is listing and marketing: putting the property on the market, engaging a real estate agent, and accepting offers. This can begin before probate is granted.
The second stage is exchanging contracts: signing the contract of sale with the buyer. This is also possible before probate, but only when the contract is carefully drafted to recognise the executor’s pending authority.
The third stage is settlement: the transfer of legal title to the buyer and payment of the purchase price. Settlement cannot occur in NSW until probate has been granted by the Supreme Court and the title has been transferred into the executor’s name through a Transmission Application.
These three stages must be carefully managed to avoid contract breaches and personal liability for the executor.
When Probate Is Required to Sell a Deceased Property
The answer depends on how the deceased estate property was held. NSW law treats three forms of ownership differently:
Sole Ownership
If the deceased was the sole registered proprietor, the property forms part of the estate. The executor needs a grant of probate before they can transfer or sell title. Without the grant, the executor has no legal authority to deal with the asset.
Tenants in Common
Where the deceased held property as tenants in common with one or more others, only the deceased’s share enters the estate. The other owners retain their shares. The deceased’s share cannot be sold or transferred until probate is granted.
Joint Tenants
Joint tenancy operates under the rule of survivorship. The deceased’s interest passes automatically to the surviving joint tenant. Probate is not required. Instead, the surviving owner lodges a Notice of Death with NSW Land Registry Services along with the death certificate, and the title transfers without court involvement.
Where the Executor’s Power to Sell Real Estate Comes From
An executor’s authority is not automatic. It derives from the grant of probate.
Section 44 of the Probate and Administration Act 1898 (NSW) gives the executor the power to deal with the deceased’s real and personal property, but this power only crystallises once probate has been granted. Section 154 of the Conveyancing Act 1919 (NSW) gives the executor the power to sell real estate of the deceased, exercisable in the administration of the estate.
Under section 61 of the Probate and Administration Act 1898 (NSW), title vests in the NSW Trustee and Guardian until probate is granted. Once probate is issued, section 44 operates retrospectively — it is taken to have vested title in the executor from the date of death. In The Daily Pty Ltd v White (1946) 63 WN (NSW) 262, the court confirmed that this retrospective operation validates actions taken by the executor before the grant, provided those acts were done for the benefit of the estate. This is the legal basis for why marketing and exchanging contracts pre-grant is permissible, but settlement — which requires passing good title — must wait for the grant.
This is the legal reason settlement cannot complete pre-probate, regardless of how willing the buyer and seller are.
Listing and Marketing a Deceased Estate Property
Marketing the property before probate is permitted and commonly done in NSW. In my experience, executors who start the marketing process early often shorten the overall sale timeline by months.
What an executor can do before probate:
- Engage a real estate agent by signing a sale agency agreement. Many agents are willing to work with executors on this basis as long as they understand the timing
- Obtain professional valuations to support the inventory of assets, set the asking price, and assist with the probate application
- Prepare the property for sale, including cleaning, minor repairs, and removing personal effects
- Hold open inspections and accept expressions of interest from prospective buyers
- Negotiate price and terms with serious buyers
What an executor should not do before probate is transfer ownership, sign a contract without legal advice, or take any step that risks claims of intermeddling in the estate.
Exchanging Contracts Before Probate Is Granted
Contracts of sale can be exchanged before probate, but the contract must protect both parties from the timing risk.
A standard contract assumes the seller has the legal right to transfer title at settlement. An executor selling pre-probate does not yet have that right. The contract must therefore be drafted to recognise the situation.
Three protections the contract must include:
- A statement that the seller is acting as executor of a named estate and that probate is being applied for
- A condition that settlement occurs only after probate is granted and the title has been transferred into the executor’s name through a Transmission Application
- A long-stop date giving the executor sufficient time to obtain probate, typically 90 to 180 days, after which the buyer can rescind if probate has not been granted
The validity of generic “subject to probate” clauses has been questioned in recent NSW legal commentary. Vague clauses without the protections above can leave the executor exposed to breach of contract or specific performance claims. Specialist drafting is essential.
Why Settlement Cannot Occur Before Probate
Settlement requires the buyer to receive a clear, registrable title. Before probate, title to the property still sits in the deceased’s name on the NSW Land Registry. The executor cannot lawfully execute a transfer.
The correct sequence in NSW is:
- Probate is granted by the Supreme Court of NSW
- The executor lodges a Transmission Application electronically through PEXA or Sympli, using Form 03AE for transfer to the executor or Form 03AD for direct transfer to a beneficiary
- NSW Land Registry Services updates the title to reflect the executor’s authority
- Settlement proceeds with the executor as the registered transferor
The Transmission Application is required by NSW Land Registry Services for any property that did not pass by survivorship. No contract clause can substitute for the actual transfer of registered title.
Risks Executors Need to Consider Before Selling Pre-Probate
Selling before probate is a defensible strategy when carefully managed. Done badly, it exposes the executor and the estate to significant risk:
- Probate delays: Grants typically take 6 to 12 weeks but can take longer for complex estates, missing wills, or contested matters. If the grant takes longer than the contract’s long-stop date, the buyer may rescind and claim damages
- Will challenges and probate caveats: A caveat lodged against the will pauses the entire process. The sale cannot complete until the caveat is resolved
- Personal liability for intermeddling: An executor who acts beyond their authority before the grant can be held personally responsible for losses to the estate or third parties
- CGT timing: Under section 118-195 of the Income Tax Assessment Act 1997 (Cth), the deceased’s main residence is exempt from capital gains tax if settlement occurs within two years of the date of death. The two-year clock starts at death, not at the grant. ATO Practical Compliance Guideline PCG 2019/5 allows a safe-harbour extension in limited cases
- Beneficiary disputes: Beneficiaries sometimes object to executors selling assets at all. Acting before probate, when authority is uncertain, makes these disputes worse
How a Specialist NSW Probate Lawyer Helps With Pre-Probate Sales
The risks above are manageable. They are not reasons to avoid pre-probate sales, but they are reasons to involve a specialist lawyer from the start.
Our team at Empower Probate Lawyers focuses exclusively on probate and estate administration. Our director, Oliver Morrisey, holds a Master of Laws in Wills and Estates (High Distinction) and has over a decade of experience guiding executors through complex sales across NSW. We help executors with:
- Reviewing or drafting the contract of sale to include proper executor protections and a workable long-stop date
- Applying for grant of probate efficiently to keep the sale moving
- Lodging the Transmission Application electronically through PEXA or Sympli
- Coordinating with the conveyancer to settle in a single workflow
- Advising on executor duties and risks before any binding contract is signed
Initial consultations are at no cost.
Speak With a NSW Probate Lawyer About a Deceased Estate Sale
If you are an executor considering selling a deceased estate property in NSW and want to understand your options before signing anything, call Empower Probate Lawyers on 1300 481 161. Specialist advice. Free initial consultation. Deferred fee arrangements available in eligible cases.
Frequently Asked Questions
Can you list a house for sale before probate is granted in NSW?
Yes. Listing the property and engaging a real estate agent is permitted before probate. Marketing early is a common and sensible strategy that can shorten the overall sale timeline once probate is granted.
How long after probate is granted can you settle the sale?
Settlement can occur once probate has been granted, the Transmission Application has been lodged with NSW Land Registry Services, and the title shows the executor as the registered transferor. This typically takes one to two weeks after the grant.
What happens if probate is refused after contracts have been exchanged?
If probate is refused, for example because of a successful will challenge, the executor cannot complete the sale. A properly drafted contract allows the buyer to rescind without penalty, and the sale fails. This is why careful drafting and a workable long-stop date are essential.
Do I need probate to sell a property held in joint names?
No. If the property was held as joint tenants, ownership passes automatically to the surviving joint tenant under the rule of survivorship. The surviving owner lodges a Notice of Death with NSW Land Registry Services using the death certificate, then can sell the property in their own name.
Is CGT payable when selling a deceased estate property in NSW?
The main residence exemption under section 118-195 of the Income Tax Assessment Act 1997 (Cth) generally applies if settlement occurs within two years of death. After two years, only a partial exemption applies unless an extension is granted under PCG 2019/5.
Can the executor sign the contract of sale before probate is granted?
Yes, provided the contract identifies the seller as the executor of a named estate and includes appropriate conditions about probate being granted. Signing without these protections can expose the executor to personal liability if the sale fails.
