Do you need probate to transfer a property when the owner passes away?

If someone passes away and owns a property in NSW, the executor or administrator or surviving owner will need to determine the owners of the property and ownership structure in order determine the process that needs to take place to transfer the property.

Sole registered owner

If the deceased owns the property in their sole name, then a grant of probate (if there is a Will in place) or a grant of letters of administration (where there is no valid Will) will need to be obtained from the Supreme Court of NSW in order to transfer (or sell) the property.

If the property is sold prior to the grant being issued by the Supreme Court of NSW, it is important that the contract for sale includes a special condition that makes the sale subject to the grant being obtained.

Property owned as tenants in common

If the deceased owns a share in the property as tenants in common with one or more persons, then a grant of probate (if there is a Will in place) or a grant of letters of administration (where there is no valid Will) will also need to be obtained in order to transfer (or sell) the deceased’s share of the property.

The beneficiaries of the estate will then become co-owners of the property (unless all owners can agree to either sell the entire property or purchase the deceased’s share).

Joint tenants

If the deceased owns a share of the property as joint tenants with one or more persons, then no grant of probate or grant of letters of administration is required.

According to the doctrine of survivorship, the surviving joint tenants become the owners of the property. However, in order to complete this process, you are required to lodge a notice of death with NSW Land and Registry Services.

This process only requires the death certificate of the deceased. No Will is required, as property owned as joint tenants is a non-Will asset.

This is the most common ownership structure for married and de facto couples.



How can you check the ownership structure?

A title search of the property owned by the deceased will show details of all owners and the ownership structure (i.e. whether owned as joint tenants or tenants in common).

This will then confirm which process will need to take place in order to either sell or transfer the property.

Lesson to be learned

It is important to have a Will in place as it will clearly set out who is appointed as executor and who is entitled to the estate. This will make the process of administering the estate a much smoother and shorter process.

However, it is also important to check how you own real property in order to ensure your property will pass to your intended beneficiaries.

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