I have held a real estate licence and run an agency myself, and understand these matters from the agent’s perspective. An owner dies. A son in Hong Kong emails asking you to list the property. A daughter in Melbourne calls to say nobody is selling anything. The tenant wants to know who to pay rent to. Agents must take care not to act on instructions from a person who lacks authority.
Questions agents ask us
- Who can sign the sales authority? Usually the executor named in the will. But their authority depends on the will and the grant of probate. Where there is no will, nobody has authority until letters of administration are granted.
- Can we sell before probate? A contract can sometimes be signed before the grant, with settlement after it. But the timing, conditions and risks need to be managed. Settlement generally cannot occur until the grant, and the property’s registration, are in place.
- Joint owners. If the deceased owned the property as a joint tenant, it passes to the surviving owner, who can register their sole ownership. If it was owned as tenants in common, the deceased’s share goes through the estate.
- Overseas executors and vendors. Identity checks, signing documents abroad, and capital gains withholding and ATO clearance certificates on settlement.
- Tenants and rent. The lease continues. Rent should go to the estate, not a family member’s personal account.
- Family conflict. Beneficiaries who disagree about the sale, the price or the agent, or one who is living in the property.
How we help agents
- Quick advice on whether the person instructing you has authority, and what you need to see.
- Grants of probate and letters of administration, including resealing grants from overseas, so the sale can settle.
- Handling the family side: negotiating between beneficiaries, so the agent is not caught in the middle.
- Conveyancing for estate sales through our firm.
Why it matters to you
Deceased estates are a steady source of listings. Agents who handle them correctly, with appropriate legal support, earn the confidence of the family.
Frequently asked questions
Who can sign a sales authority for a deceased estate property?
Usually the executor named in the will, although their authority depends on the will and the grant of probate. Where there is no will, nobody has authority to sell until letters of administration are granted. Agents should check that the person instructing them has authority before acting, especially when family members give conflicting instructions.
Can a deceased estate property be sold before probate?
Sometimes. A contract can sometimes be signed before the grant of probate, with settlement after it, but the timing, conditions and risks need careful management. Settlement generally cannot occur until the grant, and the property’s registration, are in place, so the contract terms should allow for that.
What happens to jointly owned property when one owner dies?
If the deceased owned the property as a joint tenant, it passes to the surviving owner, who can register their sole ownership, and it does not go through the estate. If the property was owned as tenants in common, the deceased’s share goes through the estate and is dealt with under the will or the intestacy rules.
Who does a tenant pay rent to after the landlord dies?
The lease continues after the landlord’s death, and rent should be paid to the estate, not into a family member’s personal account. Until it is clear who has authority to act for the estate, the agent should take care about whose instructions to follow and keep the rent in an appropriate account.
Chua Tan Associates advises families, executors, trustees and their professional advisers on estate planning, estate administration and estate disputes, in Australia and across borders. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice. Victorian law unless stated otherwise.
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