Can an Executor Sell Property in Victoria?

A family home is often the most valuable asset in an estate, and it can also carry the most emotion. So, can an executor sell property after someone dies? In many Victorian estates, yes. But the executor must first establish their authority, check how the property is owned and make sure the sale protects the estate and its beneficiaries.

The right approach depends on the will, the title to the property, whether probate is required and the estate’s financial position. Getting these details right before a contract is signed can avoid delays, disputes and unexpected costs later.

When can an executor sell property?

An executor is the person appointed in a will to administer the deceased person’s estate. Their role includes collecting assets, paying debts, dealing with tax obligations and distributing what remains to beneficiaries. Selling a property may be necessary to pay estate liabilities, carry out the terms of the will or divide the estate fairly between beneficiaries.

The will may give clear directions about the property. For example, it may say that the home is to be sold and the proceeds divided, or that a particular beneficiary has the right to receive it. Sometimes the will gives the executor discretion to decide whether a sale is appropriate.

An executor must act in the best interests of the estate as a whole. They cannot sell a property simply because one beneficiary wants a quick payment, nor can they favour their own interests if they are also a beneficiary. If the executor plans to buy the property themselves, or sell it to a relative at less than market value, independent legal advice and full disclosure are particularly important.

First, check who owns the property

Before arranging an agent or preparing a contract, the executor needs to confirm how the property is recorded on title. This can change the entire process.

Property owned solely by the deceased

If the deceased owned the property in their sole name, it generally forms part of the estate. The executor will usually need a grant of probate before they can transfer or sell it. Probate is the Supreme Court of Victoria’s recognition that the will is valid and that the executor has authority to deal with estate assets.

An executor may be able to take early steps, such as obtaining appraisals, securing the home and speaking with an agent, while probate is being prepared. However, a buyer will ordinarily need confidence that the executor can provide good title at settlement. A carefully drafted contract may deal with timing where probate has not yet been granted, but this needs proper legal advice.

Property owned as joint tenants

Where the deceased owned a property with another person as joint tenants, their interest usually passes automatically to the surviving joint owner. It does not usually pass under the will. The title is updated through a survivorship application, rather than an estate sale by the executor.

This often applies to a home owned by spouses or partners, but the title must be checked rather than assumed. The wording on the title matters.

Property owned as tenants in common

Tenants in common each own a separate share in the property. The deceased person’s share forms part of their estate and is dealt with under their will, or under intestacy rules if there is no will. The surviving co-owner does not automatically receive that share.

A sale may involve both the executor and the surviving co-owner. In some cases, the estate share is transferred to a beneficiary instead. These matters can become difficult where the co-owners or beneficiaries have different views about whether to sell.

Is probate always needed before a sale?

For a property held solely by the deceased, probate is generally required before settlement can proceed. The executor’s authority comes from the will, but probate provides the formal proof that banks, Land Use Victoria and purchasers rely upon.

The grant also allows the executor to deal with other estate assets, such as bank accounts and investments. If there is no valid will, no executor has been appointed. An eligible person must instead apply for letters of administration before dealing with estate property.

There are limited situations where the process may differ, including small estates or property held through particular structures. A practical review of the title, will and estate assets at the outset is the safest way to identify what is required.

How a deceased estate property sale usually works

The legal steps are similar to an ordinary property sale, but the executor has additional responsibilities. A clear process helps keep the sale moving while giving beneficiaries confidence that the property is being handled properly.

Secure and assess the property

The executor should make sure the property is insured, secure and maintained. They may need to arrange mail redirection, pay council rates and owners corporation fees, and take reasonable steps to prevent damage. If someone is living in the property, their legal right to remain should be understood before sale plans are made.

Obtaining more than one appraisal can help the executor make an informed decision about price and method of sale. The executor should keep records of valuations, agent recommendations, offers and key decisions.

Obtain the right authority

The executor’s lawyer prepares the probate application and assists with the documents needed to deal with the title. Once probate has been granted, the sale can proceed with greater certainty.

The conveyancing process still requires a contract of sale and vendor statement. However, they must identify the seller correctly as the executor of the deceased estate. Errors in names, authority or title details can create settlement problems that are far easier to prevent than fix.

Sell at a proper market price

Executors should take reasonable steps to obtain a fair market outcome. An auction, private sale or expression of interest campaign may each be suitable depending on the property, local market and agent advice. There is no single method that suits every estate.

Beneficiaries do not always need to approve every decision, but sensible communication can prevent conflict. Where the will is unclear, the beneficiaries disagree or the proposed sale is unusual, an executor should not proceed on assumptions.

Settle and account for the proceeds

At settlement, sale proceeds are paid into the estate account. They are not immediately available for distribution. The executor must first pay legitimate estate expenses and debts, which may include funeral costs, legal fees, rates, loan balances and tax liabilities.

The executor should provide proper estate accounts to beneficiaries. Clear records are not just good administration. They are a safeguard for the executor, particularly where family relationships are strained.

Common issues that can delay a sale

A missing original will, an outdated title, a mortgage, a caveat or a dispute about capacity can each slow down an estate property sale. So can an informal promise that a family member believes the deceased made about the home.

Family provision claims are another consideration. In Victoria, certain people may be able to seek provision from an estate if they believe they have not been adequately provided for. An executor needs to be cautious about distributing sale proceeds too soon, even after settlement, because there may be a period in which a claim can be made.

Capital gains tax can also arise when estate property is sold, particularly if it was not the deceased’s main residence, was used to produce income or is sold outside the relevant exemption period. The tax outcome depends on the property and timing, so legal and accounting advice may both be needed.

What beneficiaries can expect from an executor

Beneficiaries are entitled to reasonable information about how the estate is progressing. They may understandably ask whether the property will be sold, what it is worth and when distributions are likely to be made.

At the same time, beneficiaries cannot usually direct the executor to make every decision. The executor has duties and must exercise independent judgement. A respectful, documented process gives everyone a clearer path forward and reduces the risk that grief turns into a legal dispute.

If you are an executor facing a property sale, early advice can make the next steps much clearer. A careful review before the property goes on the market can protect the estate, preserve family relationships and help you move forward with confidence.