Land in NSW can be held 3 ways by a person. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons. All these holdings are dealt with separately on death. In this article, I will only deal with holding the land individually.
The first step is to ascertain if the deceased left a Will. If the deceased left a Will, the executor needs to apply for a Grant of Probate (“Probate”) from Supreme Court of NSW (“Court”). Probate is issued by the Court acknowledging the validity of the deceased’s Will and authorizing the executor to administer the Estate. If there is no Will, the next of kin of the deceased needs to apply for Letters of Administration. This is issued by the Supreme Court of NSW authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules. Once Probate or Letters of Administration has been obtained, the land is able to be dealt with.
If the land has not been left to a beneficiary in the Will, the land will be sold and sale proceeds will be distributed to the beneficiaries in the Estate.
In order for the property to be sold, a Contract for Sale of Land (“Contract”) needs to be prepared by your solicitor/conveyancer. This can be prepared prior to receiving a Probate/Letters of Administration. In the special conditions of the Contract, your solicitor will have a clause making completion of the contract subject to Probate being obtained. The time period is usually 3 months to allow sufficient time for the Probate to be obtained and registration of the Transmission Application to executor to enable the executor to sell the land.
Currently, the time frame for the Court to process Probate is approximately ten weeks from the time your solicitor has lodged the probate application with the Court. If a requisition is received from the Court, this will take a further period of a few weeks in order to comply with the requisition and that means a further delay in obtaining Probate.
In all likelihood, your solicitor will be extending the period of the special condition regarding Probate to be obtained to 4 or 5 months to ensure sufficient time is allowed to obtain Probate so the executor will not be in default of the Contract.
Settlement of a matter cannot take place until the Probate is obtained as this is the document required to enable the Transmission to the Executor to be lodged with the Land Registry Services.
At Everingham Solomons, we have the expertise to assist you in Estate and conveyancing matters because, Helping You is Our Business.
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