Sale of Deceased Estate Property prior to Probate

1 October 2025 in Wills and Estates Law | 6 min read | skip to FAQs

This article discusses the sale of deceased estate property. In particular, the sale of ‘real property’, that is land and building, prior to the grant of probate and the use of ‘subject to probate’ clauses in a sale of land contract.

In Australia, many estates of deceased persons are administered by an executor who has not yet obtained probate of the will. Key questions to consider include: the authority of the executor to act in this capacity, the source (if any) of their title to the estate’s assets, and the legal basis upon which those assets may be dealt with.

Recently, a legal question has arisen as to whether a ‘subject to probate’ clause in a Sale of Land Contract is sufficient for an executor to sell property from a deceased’s estate before probate is granted. Some executors have attempted to sell real property before probate, often inserting a ‘subject to probate’ clause into the contract of sale. The legal issue centres around whether such clauses are valid and whether they grant the executor sufficient legal authority to complete the sale of the property.

Relevant NSW Legislation in the Sale of Deceased Estate Property

The executor of a will does not have authority to sell property of the deceased until they have been granted probate, except in certain exceptional cases. The probate process formally recognises the executor’s authority to deal with the deceased’s property, including the ability to transfer ownership of real property as stipulated under section 44 of the Probate and Administration Act 1898 (NSW). As Mason J said in Bone v Commissioner of Stamp Duties [1974] 48 ALJR 310,316

“The effect of sections 44 and 61 of the Probate & Administration Act 1898 ( NSW) has been to place the title of the executor on a similar footing to that of the administrator at common law; the executor’s title now flows from the grant of probate, in the meantime the estate is in the Public Trustee… “

Relevant Case Law

In Daily Pty Ltd v White (1946) 63 WN ( NSW) 262, Herron J held that a purported assignment of tenancy by an executor before probate was of no effect in New South Wales because title to property was vested in the Public Trustee by force of section 61 of the Probate & Administration Act 1898. It seems to follow that where an executor’s title flows from the grant of probate alone, an executor has no power to deal with estate assets until probate is granted to the executor.

For many years it was thought that provisions such as section 61 of the Probate & Administration Act 1898 ( NSW) conferred a purely formal, or ‘repository’, title upon the Public Trustee, thus preventing a hiatus that might cause the property to become bona vacantia.

Are Subject to Probate Clauses Effective?

Some executors attempt to bypass the wait for probate by inserting ‘subject to probate clauses’ in the contract of sale, arguing that an executor derives representational status from the will alone, coupled with acceptance of the office. Although these clauses would indicate that the sale is contingent upon the grant of probate and that the property will not be transferred until the court has granted probate to the executor, it does not consider nor look at the legal authority to transfer title by the executor. The contract of sale itself cannot confer legal authority that probate would typically grant. Herron J said in Daily Pty Ltd v White.

“[The executor] is not possessed of the legal estate in the deceased’s property, and therefore cannot dispose of it, he may purport to do so, and if subsequently probate is granted , section 44 will operate to render valid such transactions when it is shown that they are for the benefit of the estate, or have been made in due course of administration”

Role of the Executor in the Sale of Deceased Estate Property

The executor has no legal authority until probate is granted to transfer the property or sign a deed of transfer. The clause inserted into the sale of contract cannot and does not over ride the legal requirement of probate. The question of when and whether probate will be granted is also an issue for legal contention, how can the executor sign a contract to sell property that they have no legal authority over and what are the potential ramifications to the buyer? These legal questions have arisen in a number of cases in NSW .

Relevant Case Law Examples

In the case of Re Estate of Ainsworth [1992] NSWSC 234, the New South Wales Supreme Court looked at the capacity of an executor to deal with estate property before obtaining probate. The applicant in this case sought to sell real property of the deceased before obtaining probate. The issue that arose was whether an executor had the authority to sell the property before probate was granted. It was held by the court that an executor cannot deal with real property of a deceased person until probate is granted, as probate is the legal mechanism by which the executor’s authority to deal with the estate is formally and legally established. The court reiterated in this case that the deceased’s property remains vested in the deceased’s estate until probate is granted and the executor cannot transfer title to third parties without this legal authority.

In the case of Re Estate of Ross [1996] NSWSC 157, the executor entered into a contract for the sale of a deceased person’s property, with the contract stipulating, that the sale was subject to probate. Probate had not yet been granted and the buyer sought to enforce the contract. The New South Wales Supreme Court looked specifically at whether an executor could sell property without probate when the sale was subject to a ‘subject to probate clause’ and ruled that the executor could not complete the sale without first obtaining probate as they did not yet have legal authority to transfer property. While the contract could be entered into conditionally, the actual conveyance of title was dependent on the probate process. The court once again reiterated that an executor cannot bypass the need for probate to transfer title.

Exceptions

It is important to note that in very limited circumstances the executor may sell property before probate is granted, but will require the courts approval, for example court orders for urgent sales. An executor may seek a court order for the sale of property if there is a need to pay debts or preserve the value of the estate. The court can grant authority to the executor to sell the property before probate in exceptional circumstances, under section 57 of the Probate and Administration Act 1898 (NSW) which allows the New South Wales Supreme Court to grant orders for the sale of assets before probate if there is sufficient reason.

Key Takeaways

In conclusion, the standard rule in New South Wales is that probate is required for an executor to sell property. While a contract can be conditional upon probate being granted, the executor cannot bypass the requirement for probate through a contractual clause alone. Cases like Re Estate of Ainsworth and Re Estate of Ross confirm that the executor cannot sell property without probate unless they have received a court order or the property is part of an estate where probate is not required for minor assets (which does not include real property).

Subject to Probate Clauses

While a ‘subject to probate’ clause in the contract of sale can conditionally allow for a sale to proceed once probate is granted, it does not give the executor the authority to transfer title before probate is issued. Care must also be taken to ensure that the vendor is correctly described in the contract. The subject to probate clause simply delays the completion of the sale until probate is obtained and renders the contract of sale conditional on probate being granted.

How can BSM Sydney Lawyers assist you?

Brander Smith McKnight Sydney lawyer have highly experienced wills and estates lawyers who are able to accurately advise you on the legal intricacies regarding all aspects of probate law, including the sale of deceased estate property prior to probate being granted. Our experienced estate lawyers offer a free 20-minute consultation to discuss your matter.

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