Selling or Transferring Property from a Deceased Estate in Victoria

Establishing authority to deal

Before the executor or administrator can sell or transfer real estate held in the deceased's sole name, they need a grant of representation from the Supreme Court of Victoria. See our guides to probate and to letters of administration for the underlying application. Property held jointly with a surviving owner passes by survivorship and does not require a grant.

Transmission application

Once the grant has issued, the personal representative lodges a transmission application with Land Use Victoria to have themselves recorded on title as personal representative of the deceased. This is a Land Use Victoria dealing rather than a transfer of ownership; no stamp duty is payable on transmission itself. Only after transmission can the estate deal with the property as vendor or transferor.

Selling the property to a third party

The sale proceeds in the ordinary way — a vendor statement under section 32 of the Sale of Land Act 1962 (Vic) is prepared, a contract is signed, and the property settles under the Property Exchange Australia electronic conveyancing platform. The Contract of Sale is entered into by the personal representative in that capacity. Practical points that recur:

• The section 32 must disclose the recent transmission and any restrictions on title.
• Insurance should remain in place until settlement; risk in Victorian sales passes on settlement, not signing.
• Where the deceased's home is being sold, capital gains tax may be exempt if sold within two years — advice from an accountant should be obtained.
• Where a beneficiary wishes to purchase, the transaction is still an arm's-length sale for stamp duty purposes.

For the broader conveyancing framework see our property and conveyancing practice.

Transferring the property to a beneficiary

Where the will directs (or the beneficiaries agree) that the property is to be transferred in specie to a named beneficiary rather than sold, the executor prepares a transfer of land to the beneficiary. In most cases a transfer to a beneficiary in conformity with the will attracts nominal stamp duty under the Duties Act 2000 (Vic), provided the transfer reflects the entitlement under the will and is not an appropriation for value.

Where the transfer varies from the will — for example, one beneficiary takes the property while another takes cash representing their share — a deed of family arrangement or a formal appropriation is often required, and stamp duty consequences should be checked before signing.

Capital gains tax on estate real estate

The general rule is that the transfer of a CGT asset from a deceased to their legal personal representative, and from the legal personal representative to a beneficiary, does not itself trigger CGT. The beneficiary inherits the cost base (for post-1985 assets) or the market value at date of death (for pre-1985 assets). CGT arises when the property is later sold. The two-year main residence exemption for a deceased's home is commonly relied on but has technical requirements — obtain accounting advice before selling near the end of the two-year window.

Timing — do not sell before the Part IV window closes

If a Part IV family provision claim is foreshadowed, the personal representative should not settle the sale (or transfer proceeds to beneficiaries) until the six-month claim window under the Administration and Probate Act 1958 (Vic) has passed and any claim has been resolved. Distributing the property proceeds early can expose the executor personally to a successful claim. Our guide to the Administration and Probate Act explains the timing.

Where planning helps

The way a property is held during the owner's lifetime — sole name, joint tenants, tenants in common, held by a trust or company, subject to a life interest — has a direct effect on how quickly and cleanly it can be passed on. This is one of the issues addressed in wills and estate planning.

How Hanlons can help

Hanlons handles both the estate administration and the conveyancing side of transferring or selling Victorian real estate held in a deceased estate. We prepare the grant, the transmission application, the section 32 vendor statement and the transfer, and coordinate with beneficiaries, accountants and any surviving joint owner. See probate and deceased estates and property and conveyancing.