When selling the home of someone who has passed away, the circumstances of the sale may warrant a longer settlement period. This is particularly likely if Probate needs to be granted, if Letters of Administration need to be granted, or if the death certificate is not readily available.
Here, I’ll explain some common circumstances under which a longer settlement time would be beneficial. The situation will differ depending on whether the deceased was a joint tenant, or a tenant in common or sole owner.
If the deceased was a Joint Tenant
If the deceased was a joint tenant, the settlement agent will need to obtain and certify a death certificate, before lodging the Transfer of Land.
This is a simple process if the seller already has the death certificate. Even if they’ve lost the certificate, a new one can be obtained quickly with a trip to the Office of Births, Deaths and Marriages in the Perth CBD, if that person died in Western Australia.
But if the deceased died interstate, the Office of Births, Deaths and Marriages will take five working days to process the application for a new certificate – and factoring in postage time, it may take two weeks for the client to obtain the death certificate.
It would probably take even longer to obtain a death certificate from another country. For more information on this, see our previous article How the death of a Joint Tenant affects settlement.
The two weeks+ time period, if not accounted for, could lead to a costly delay in settlement.
If the deceased was a Tenant in Common or sole owner
If the deceased was a tenant in common (or sole owner) who left a will, the executor of the will needs to be granted Probate before the Transfer of Land can be completed.
If the deceased was a tenant in common (or sole owner) who did not leave a will, a family member or spouse needs to apply for Letters of Administration before the Transfer of Land can be completed. While Letters of Administration perform a similar function to Probate, the application process is more complex, takes longer, and usually involves a lawyer.
Applications for Probate and Letters of Administration can take 3-6 weeks to process through the Supreme Court. If the seller doesn’t use a lawyer to prepare the application, extra time may be needed to allow for potential mistakes.
For more information on this, see our previous article How the death of a Tenant in Common affects settlement.
Again, the 3-6 weeks+ time frame could potentially lead to a settlement delay if not accounted for.
To help avoid such delays, ensure sellers are adequately prepared.
- If the deceased was a tenant in common or sole owner, apply for Probate or Letters of Administration in a timely manner. If Probate or Letters of Administration haven’t been granted, consider including a condition on the contract stating that the sale is subject to the granting of Probate or Letters of Administration*. I suggest settlement date be set at least 21 days from finance approval or granting of Probate/Letters of Administration, whichever is later.
- If the deceased was a joint tenant, ensure you have the death certificate readily available. If you don’t, and the deceased did not die in WA, consider extending the settlement period.
By taking these proactive measures, sellers can be spared the unnecessary stress of a delayed settlement.
* This does not constitute legal advice. For specific advice on writing contracts, please consult a legal professional.
Image by Nikzane via Flickr.