By Brendan Leahy, Naked Real Estate®
I sell property for a living, so treat this as one agent’s experience rather than legal advice. On this subject more than any other, get a solicitor.
I have sold a lot of estates since 2002. Roughly two thirds of them run smoothly, because everybody knows where they stand.
The other third do not, and that is what this is about.
You can market before probate. You cannot settle.
This is the part executors most often get wrong in both directions.
You do not have to wait for probate to list the property. You can market it and you can accept an offer.
What you cannot do is settle. The title has to be transferred into the executor’s name at Landgate first, and that needs the grant of probate, or letters of administration if there is no valid will. Without it, settlement cannot happen.
So if you go to market before the grant, the contract needs a special condition making settlement subject to probate, with a realistic timeframe. Your settlement agent or solicitor will draft that.
It is worth knowing because probate can take weeks or months, and executors who assume they must wait for it before doing anything often lose a selling season.
The executor works for the estate, not for the family
This is the line that causes the most trouble.
You may be the son or the daughter. You are also the person legally responsible for acting in the best interests of the estate, which is not always the same as keeping everyone happy.
I have seen executors drag their feet because of a family dispute, and in some cases let the house run down while they did. That costs the estate real money at sale. Every month of arguing is a month of nobody mowing the lawn.
What happens when it goes wrong
I sold an estate where the money involved ran into the millions. Three family members, and one of them was being pushed along by somebody outside the family who wanted more out of it.
They rang our office constantly. What is happening with the sale. When is settlement. What did it sell for.
We told the executor about the calls. The executor and their solicitor instructed us not to discuss anything with that person. So we did not.
They got angry. Eventually screaming down the phone, and then turning up at the office doing the same.
I am not telling you this as a war story. I am telling you because the executor had already protected themselves and the estate by putting that instruction in writing, and it meant none of it landed on the family.
I understand why people get like that. But when the executor and their solicitor instruct us not to discuss the sale with someone, family or not, that is what we do. We do not have a choice.
If you are an executor, that instruction is yours to give, and it is worth giving early.
The smaller arguments are just as real It is rarely the house itself.
It is a picture on a wall. A garden somebody planted. Something said twenty years ago.
And families that got on perfectly well while their parents were alive can be at each other’s throats within weeks of the funeral. I have seen it more times than I would like.
Get the will done properly
You can buy a will kit from the post office or the newsagent. I would not rely on one.
Have it done by a solicitor. The reason is not the wording of the document. It is what happens afterwards if there is any uncertainty about the will, the executor, the beneficiaries, or if somebody believes they have a claim against the estate. Family members nobody has heard of can appear once there is money involved. Relationships from years back come to light.
Those disputes get expensive fast. A solicitor can also explain what claims might be available, the time limits that apply, and how the estate should be administered before anything is distributed.
The conversation worth having before any of this
If you are getting on in life, or even if you are not, sit down with your children and tell them what you want.
Not the numbers. Just your wishes.
Most of the grief I see comes from surprises. That conversation is the cheapest way to prevent it.
The warranties an executor is asked to give
This is the part I would want to sit down and explain to any executor before we go to market, and it is the one almost nobody raises.
When you sell in WA, the standard contract usually brings in the Joint Form of General Conditions for the Sale of Land. Clause 9 of the 2022 edition is headed “Seller Representation and Warranty”, and it sets out what the seller is promising the buyer about the property.
Most of those promises are about what the seller knows. They are written as “the Seller does not know of” and “as far as the Seller is aware”. An executor can usually give those honestly, because they are limited to their own knowledge.
But a few are not qualified that way at all.
Clause 9.1(b) states that no building or other structure on the land encroaches on adjoining land. Not “as far as the seller is aware”. Just that it does not.
Clause 9.1(f) warrants that the property will be in the same state and condition it was in immediately before the contract date.
Clause 9.2(b) warrants that the use of the property is lawful.
Now think about the executor who has not been inside the house for ten years. They do not know whether a previous owner put a patio over the boundary. They do not know whether the granny flat out the back was ever approved. They are being asked to promise things they have no way of knowing.
That is the real exposure, and it is worth understanding before you sign anything.
What you can do about it
Clause 9.1 opens by excepting anything the seller has disclosed in writing to the buyer before the contract date, or anything otherwise specified in the contract. And clause 25.2 says that where the contract and the General Conditions conflict, the contract wins.
So the answer is not simply “sell it as is” and hope. It is either written disclosure before the contract date, or a properly drafted special condition, or both.
Which one suits depends on the estate. If the home is in good condition and well known to the family, it may not be needed at all. If the executor lives interstate and has not seen the place since before the renovations, it matters a great deal.
This is a conversation for the solicitor, not the agent. What I would say is have it early, before the property goes to market, rather than when an offer is sitting on the table and everyone is in a hurry.
If you are the executor
Get the will and the grant in the hands of a solicitor early.
Decide who speaks to the agent, and tell us.
Do not let a dispute stop the maintenance. A house going backwards costs the estate more than the argument is worth.
And remember you are allowed to get advice. You are not supposed to know how to do this.
I have handled a lot of these. If you want to talk it through before you decide anything, I am happy to.
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This article is general information based on my experience selling property in WA. It is not legal advice. Every estate is different. Speak to a solicitor.