When selling the home of a Tenant in Common* who has passed away, it’s wise to factor in extra settlement time to allow for Probate or Letters of Administration to be granted.

If the deceased left a will, the executor of the will needs to be granted Probate before the Transfer of Land can be completed.

If the deceased 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. Letters of Administration perform a similar function to Probate, but applying for them is a more complex process that 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 – provided the application is correct. If the seller does not use a lawyer to apply for Letters of Administration, extra time may be needed to allow for potential mistakes in the application.

This 3-6 weeks+ time frame could potentially lead to settlement delays and penalty interest for the seller.

To reduce the risk of delays, I recommend sellers in this situation apply for Probate or Letters of Administration in a timely manner. If Probate or Letters of Administration haven’t been granted, include 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.

By doing so, you ensure that Probate or Letters of Administration are granted before settlement is scheduled to occur – paving the way for a smooth settlement for all involved.

* The information in this article also applies to a sole owner who has passed away. For information regarding the death of a Joint Tenant, see How the death of a Joint Tenant affects settlement.

** This does not constitute legal advice. For specific advice on writing contracts, please consult a legal professional.

Image by Kevin Saff via Flickr.

About the Author

Residential Settlements

We provide real estate settlement services throughout Western Australia. In addition, we complete Related Party Transfers, Family Transfers, Private Sales and other title related services.