Transferring Property From a Deceased Estate in NSW

Dealing with property after someone dies is rarely urgent in the way a purchase is, and that's a small mercy. But the process has a definite order, and taking steps out of order creates delays that families going through enough already don't need.

Here's how property moves out of a deceased estate in NSW, in the order it actually happens.

First: how was the property owned?

This single question determines everything that follows, and it's answered by a title search.

Joint tenants. The property passes automatically to the surviving owner by survivorship. It doesn't form part of the estate and it isn't dealt with by the will. The surviving owner lodges a notice of death with Land Registry Services to have the deceased's name removed. It's a straightforward step, and duty doesn't apply.

This is how most couples own their home, and it's why many people find the property side simpler than expected.

Tenants in common. Each owner holds a defined share, and the deceased's share passes under their will — or under the intestacy rules if there's no will. This share forms part of the estate and follows the process below.

Sole ownership. The whole property forms part of the estate.

Probate, or letters of administration

Where the property forms part of the estate, the executor generally needs a grant from the Supreme Court before completing any dealing with it — probate where there's a will, letters of administration where there isn't, and letters of administration with the will annexed where there is a will but no executor able or willing to act.

This is legal work, usually handled by a solicitor, and the timeframe depends on the court's workload — so it's worth starting early.

You don't have to wait for the grant before you list, though. An executor can market the property and even exchange contracts while probate is pending, provided the contract carries a special condition making completion conditional on the grant issuing. What can't happen beforehand is settlement and registration of the transfer. An administrator on an intestacy is in a different position — their authority comes from the grant itself, so nothing starts until it's issued.

Then: transmission

Once probate is granted, the executor lodges a transmission application. This records the executor on the title, in their capacity as executor, so they have authority to deal with the property.

Transmission isn't a transfer to anyone personally — it's a step that gives the executor the legal ability to act. From here, there are two paths.

Path one: transfer to a beneficiary

Where the will leaves the property to a named beneficiary, the executor transfers it to them.

Transfers made in conformity with the will — or with the intestacy rules where there's no will — attract concessional duty rather than the full rate: a nominal amount rather than a percentage of the property's value. On a family home, that's a very significant difference, and it's one of the few genuinely favourable rules in this area.

The transfer has to reflect what the will actually says. Where beneficiaries want to arrange things differently between themselves — one taking the house, another taking other assets — that's possible, but it needs to be structured properly, and the duty consequences differ. Get advice before agreeing anything informally.

Path two: the estate sells

Where the will directs the property to be sold and proceeds divided, or where the beneficiaries agree that selling is best, the executor sells it as a normal sale — with some differences.

The contract is entered into by the executor in their capacity as executor. The disclosure documents are the same as any sale. Where the executor has never lived in the property, they may know little about its history, and that's worth being upfront about with buyers rather than discovering during requisitions.

Capital gains tax may apply depending on timing and how the property was used. That's a question for the estate's accountant, and it's worth asking before the property is listed rather than after it sells.

Common complications

No will. The intestacy rules determine who inherits, and they may not match what anyone expected. Letters of administration are required instead of probate.

The will is being contested. Nothing moves until it's resolved. This is a solicitor's matter.

Multiple beneficiaries who disagree. Extremely common, and mostly resolved with time and a clear explanation of what the will actually requires.

Someone may make a claim on the estate. In NSW a family provision claim can generally be brought within 12 months of the date of death, which is why many executors hold off distributing for the first six months. That isn't the conveyancing holding things up — it's prudence, and a solicitor should be advising the executor on it.

The property has a mortgage. The debt doesn't disappear. It has to be paid out on sale, or refinanced by the beneficiary taking the property.

How we handle estates at Malko Conveyancing

Malko Conveyancing handles the property side: the title search that tells you how it was owned, the transmission application, the transfer to beneficiaries, or the sale if the estate is selling.

We work alongside the solicitor handling probate, and alongside the family's accountant where tax questions arise. Where something falls outside what a conveyancer can advise on, we'll say so and help you find the right person.

We also understand that this isn't a transaction like the others. Timeframes are usually flexible, and there's rarely a reason to rush. What people need is someone who explains each step clearly and doesn't make it harder than it is.

If you're dealing with a property in an estate and aren't sure where to start, book a free 15-minute call. Often the first thing we can tell you — whether the property passes automatically or needs to go through the estate — resolves most of the uncertainty in five minutes.