Properties sold by deceased estates make up about 15% of the Melbourne residential market in any given year. They appear undervalued — often because executors prioritise speed over price, or because the property hasn’t been updated since the deceased moved in decades ago. The opportunity is real, but the legal mechanics are different from an ordinary sale, and timing risk is the biggest unknown.
This guide explains how Victorian deceased estate sales work, what delays to expect from probate, the contract conditions you should always include, and the specific Section 32 issues to look for.
Who can sell a deceased estate property?
After a person dies, their property does not transfer to anyone automatically. It vests in a personal legal representative — either an executor (if there is a valid will) or an administrator (if the deceased died intestate or no executor was appointed). That legal representative becomes the registered proprietor for the purpose of selling, but only after they obtain authority from the Supreme Court of Victoria:
- Grant of probate if there is a valid will. The court verifies the will and appoints the named executor.
- Letters of administration if there is no will or the will is invalid. The court appoints an administrator (often a spouse or adult child).
Until the grant or letters are issued, no one has authority to sell the property. This is the core timing issue in deceased estate sales.
Probate timing — what to expect
| Stage | Typical time | What can go wrong |
|---|---|---|
| Death + first instructions to lawyer | 2–6 weeks | Family disputes; missing documents |
| Application drafting + supporting affidavits | 2–4 weeks | Locating witnesses; valuation timing |
| Lodgement with Supreme Court | 1–2 days | Filing fee delays |
| Court processing — straightforward | 4–8 weeks | Office of Public Advocate review |
| Court processing — contested | 6–18 months | Family Provision claim under Part IV |
| Grant issued | 1 day | — |
| Total (uncontested) | 3–5 months |
A property listed for sale before grant of probate is sold “subject to grant of probate” — meaning the contract becomes binding only after the grant is issued. Until then, the buyer is exposed to the risk that probate is contested or delayed.
The Family Provision risk
Under Part IV of the Administration and Probate Act 1958 (Vic), eligible family members (spouse, children, dependents) can contest the will and seek a larger share of the estate. A successful Family Provision claim can require the executor to pay a larger portion to the claimant, sometimes from the proceeds of the sold property.
Buyers are usually shielded from Family Provision claims because the claim is against the estate, not the property. But if the claim is filed before the property settlement, the executor may be reluctant or unable to settle. Time limits: 6 months from grant of probate.
Contract conditions to include
1. “Subject to grant of probate” clause
If the contract is signed before probate is granted, the contract must include a special condition making it subject to the grant. Standard wording includes:
- The vendor undertakes to apply for and use best endeavours to obtain probate
- A long-stop date by which probate must be granted (typically 90–120 days)
- A right for either party to rescind if probate isn’t granted by the long-stop
- Refund of deposit on rescission
2. Condition disclosure
Many deceased estate properties have not been updated for 30+ years. The Section 32 may understate the work needed because the deceased had grown accustomed to the condition. Always insert a special condition allowing a building inspection — and budget realistically for renovation costs.
3. Settlement timing flexibility
Estate sales often need flexible settlement to allow the executor to clear personal belongings. A reasonable settlement period of 60–90 days is standard.
Section 32 issues specific to deceased estate sales
- Title in deceased’s name. The title search will show the deceased as registered proprietor. The transfer to the executor (and ultimately to you) happens at settlement under the grant of probate.
- Outdated rates and OC certificates. Estate properties often have rates and OC fees in arrears. These are adjusted at settlement, but check for amounts that look unusually high.
- Building permits and works without permits.If the deceased did renovations decades ago without permits, the permits won’t be in council records. You inherit any compliance issues.
- Older statutory disclosures. Asbestos was used extensively in residential construction up to 1987. Lead paint was common until the 1970s. Older estate properties carry these risks.
- Easements and covenants.Older titles often have forgotten easements (drainage, sewer, telecommunications) that weren’t actively used by the deceased but still exist on title.
The opportunity side
Genuine pricing opportunities exist in deceased estate sales because:
- Multiple beneficiaries may want a quick distribution
- The executor has fiduciary obligations and prefers certain quick sales
- Older homes haven’t been “styled up” for sale
- Estate agents often price conservatively to ensure a sale
Realistic discounts: 3–10% below comparable owner-occupier sales, though this can stretch to 15%+ for properties needing major work.
Walk-away triggers
- Probate not granted within 6 months of contract
- Family Provision claim filed against the estate
- Multiple competing claims to the property (e.g. unrecorded mortgage to a private lender)
- Title held in deceased’s name but no surviving will, no spouse, no clear administrator — administration could take 12+ months
Ready to check your contract? Upload your Section 32 or Contract of Sale at precontractreview.com for a pre-contract check — typically in just a few minutes.