SELLING A DECEASED ESTATE IN QUEENSLAND
If you are selling a property that is still registered in the name of someone who has since passed away, there are some additional considerations when preparing the contract.
A contract of sale can still be entered into but the name on title will need to be fixed prior to settlement. To allow time to do this, a special condition should be inserted into the contract – the specifics of that special condition will depend on how the property is currently held.
The three common scenarios are:
- Joint Tenants – Deceased’s interest to pass to the remaining registered owner
- Tenants in Common – Deceased’s interest to pass to the remaining registered owner
- Executor – Deceased’s interest to be transferred to an executor
JOINT TENANTS – DECEASED’S INTEREST TO PASS TO THE REMAINING REGISTERED OWNER
If the parties registered on title held the property as Joint Tenants, the property will be transferred to the remaining property owner. However, a Form 4 Request to Record Death will need to be registered with the Titles Office, along with a copy of the death certificate.
To allow time for this, we recommend the following condition is inserted into the contract:
It is acknowledged by the Buyer that the property hereby sold is presently registered in the name of two parties, one of which is deceased.
This Contract is conditional upon the Seller causing a Form 4 Request to Record Death in relation to the [DECEASED]’s interest in the Property to be registered with the Land Titles Registry on or before [X] days from the Contract Date (‘Due Date’).
The Seller must use its best endeavours to arrange for registration by the Due Date.
In the event that this special condition is not satisfied by 5.00pm on the Due Date, either party may terminate the Contract and the deposit will be refunded in full to the Buyer.
The Seller on the contract should be listed as the remaining property owner and they will sign the contract.
EXAMPLE
Joe Smith and Jane Smith, husband and wife, hold the property as joint tenants.
Joe has passed away but is still registered on the title. A Form 4 Request to Record Death must be lodged with the Titles Office to transfer his share in the property to Jane prior to settlement.
Jane will be listed as the Seller and will sign the contract.
TENANTS IN COMMON – DECEASED’S INTEREST TO PASS TO THE REMAINING REGISTERED OWNER
If the parties registered on title held the property as Tenants in Common, the deceased’s interest in the property will be dealt with in accordance with the provisions of their will. If their interest is to pass to the remaining registered owner, a Form 5 Transmission by Death application will need to be registered with the Titles Office, along with a copy of the grant of probate.
To allow time for this, we recommend the following condition is inserted into the contract:
It is acknowledged by the Buyer that the property hereby sold is presently registered in the name of two parties, one of which is deceased.
The Contract is conditional upon the registration with the Department of Natural Resources, Mines and Energy/Titles Registry Office of a Transmission by Death in favour of the Seller within [X] days from the Contract Date (‘Due Date’).
The Seller must use its best endeavours to arrange for registration by the Due Date.
In the event that this special condition is not satisfied by 5.00pm on the Due Date, either party may terminate the Contract and the deposit will be refunded in full to the Buyer.
The Seller should be listed as the remaining property owner and they will sign the contract.
EXAMPLE
Joe Smith and Jane Smith, husband and wife, hold the property as tenants in common in equal shares.
Joe has passed away but is still registered on the title. Under his will, his share in the property is to be transferred to Jane. A Form 5 Transmission by Death application must be lodged with the Titles Office to transfer his share in the property to Jane prior to settlement.
Jane will be listed as the Seller and will sign the contract.
EXECUTOR – DECEASED’S INTEREST TO BE TRANSFERRED TO AN EXECUTOR
If a registered owner’s interest in property is to be transferred to an executor, a Form 5 Transmission by Death application will need to be registered with the Titles Office, along with a copy of the grant of probate. To allow time for this, we recommend the following condition is inserted into the contract:
The Contract is conditional upon the registration with the Department of Natural Resources, Mines and Energy/Titles Registry Office of a Transmission by Death in favour of the Seller in the Seller’s capacity as personal representative within [X] days from the Contract Date (‘Due Date’).
The Seller must use its best endeavours to arrange for registration by the Due Date.
In the event that this special condition is not satisfied by 5.00pm on the Due Date, either party may terminate the Contract and the deposit will be refunded in full to the Buyer.
The Seller should be listed as “[EXECUTOR’S NAME] as personal representative of the Estate of [DECEASED PARTY’S NAME]” and the executor will sign the contract.
EXAMPLE
Joe Smith held the property as sole proprietor. His executor is his daughter, Julie Smith.
Joe has passed away but is still registered on the title. A Form 5 Transmission by Death application must be lodged with the Titles Office to transfer the property to Julie, as executor, prior to settlement.
The Seller will be listed as “Julie Smith as personal representative of the Estate of Joe Smith” and Julie will sign the contract as executor.
