In most cases, real property held solely in the name of the deceased cannot be transferred without probate in Queensland. The Titles Registry requires evidence of the executor’s authority before registering any transfer from a deceased estate.
The transfer of real property following a death is one of the most common practical issues executors encounter. Whether the property is being sold, transferred to a beneficiary, or dealt with in some other way, the question of whether probate is required almost always arises.
The general position in Queensland is that probate is required before the Titles Registry will register a transfer of property from a deceased estate. This applies whether the transfer is to a purchaser on the open market or directly to a beneficiary under the will. The executor’s authority to deal with the property must be formally established before the transaction can be recognised.
There is an important exception to this. Where property is held as joint tenants rather than as tenants in common, the deceased’s interest passes automatically to the surviving joint tenant by right of survivorship. In that circumstance, the surviving joint tenant can apply to have the title updated without requiring a grant of probate. The process involves lodging the relevant documentation with the Titles Registry, including a death certificate and survivorship application.
Where property is held as tenants in common, the position is different. The deceased’s share forms part of their estate and cannot pass to any other person without going through the estate administration process, which will generally require probate.
The distinction between these two forms of ownership is not always well understood, and it is worth confirming how a property is held before assuming which pathway applies. This information is available from the title search and should be one of the first things an executor checks.
For executors dealing with property that requires probate before transfer, the focus should be on preparing and lodging the application as early as practicable, so that the transfer is not unnecessarily delayed once the grant is obtained.
ALF Lawyers assists executors across Queensland with property transfers in deceased estates, including identifying the correct pathway based on how the property is held and managing the interaction between probate and the Titles Registry process.
