Probate, the transmission application, the ATO clearance certificate and the two-year capital gains window — the three clocks running underneath an ordinary conveyancing job, and where each one catches executors out.
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Someone has died, the family home has to be sold, and it has fallen to you. You are probably not a lawyer, you have almost certainly never been an executor before, and the agent is already asking when it can go on the market.
Selling a deceased estate property in NSW is an ordinary conveyancing job wrapped around three clocks that nobody mentions at the funeral. Miss one and it costs the estate real money. This is what has to happen, in what order, and where the traps sit.
An executor is the person named in the will to carry out its terms. If there is no will, the Court appoints an administrator instead. Much of what follows applies to both — but not all of it, and the difference is flagged where it bites.
Not to put the house on the market, and not to exchange contracts — an executor can generally do both before the paperwork is finished. But probate and the transmission application do need to be complete in time for the buyer's transfer to be registered at settlement. If there is no will, the position is stricter.
Probate is a grant from the Supreme Court of NSW. It establishes that the will has been proved and formally recognises your authority as executor to administer the estate. Where there is no executor able and willing to act, the Court can instead grant letters of administration — either on intestacy, meaning there was no will, or "with the will annexed", meaning there is a will but nobody named in it is acting.
Where the deceased owned NSW land in their own name, the step that puts you in a position to deal with it is the transmission application: NSW Land Registry Services Form 03AE, made under section 93 of the Real Property Act 1900. It registers you as personal representative — in plain terms, it puts you on the title in your capacity as the person administering the estate. It does not ordinarily attract transfer duty, though registration and conveyancing fees still apply.
As executor you can generally exchange contracts before the transmission is registered. What you cannot do is settle without it. If you do exchange first, the contract should carry conditions dealing with the outstanding steps and the possibility of delay. That is a drafting job worth getting right, because the alternative is an anxious buyer and a settlement date you cannot meet.
One important difference if there is no will. An executor's authority comes from the will itself. An administrator's does not — an administrator has no authority to act until letters of administration are granted. If you are administering an estate without a will, you cannot list, exchange or sell before the grant. The waiting is not optional.
If the property was held as joint tenants, it does not form part of the estate at all. It passes automatically to the surviving owner by survivorship. The survivor lodges a Notice of Death and becomes the sole registered owner. No probate is needed for that property.
Joint tenants means the survivor takes the whole property automatically. The dealing is a Notice of Death, NSW Land Registry Services Form 02ND under section 101 of the Real Property Act 1900, and no transfer duty is payable on it.
Tenants in common is different. Each owner holds a distinct share, and the deceased's share passes under their will. That share is part of the estate and follows the probate route above.
Most couples hold as joint tenants and most siblings who inherit together hold as tenants in common — but you cannot assume. It is recorded on the title, and checking it is the first thing that should happen, before anyone speaks to an agent.
If you are selling to a buyer, yes. Since 1 January 2025 the purchaser must withhold 15% of the price on every Australian property sale, at any value, unless the seller provides an ATO clearance certificate before settlement. There is no longer a price threshold, and certificates can take up to 28 days.
The rule is called foreign resident capital gains withholding, which is misleading, because it catches Australian residents too — the way you prove you are one is by producing the certificate.
What changed. From 1 July 2017 to 31 December 2024 the rate was 12.5% and applied only to property worth $750,000 or more. From 1 January 2025 it is 15% and applies to all property at any value. Plenty of executors, and a fair few agents, are still working from the old numbers.
What happens if you miss it. The buyer is legally obliged to withhold 15% of the price and send it to the ATO. The estate gets it back eventually through a tax return, but not for months — and beneficiaries expecting their share will be told the money is sitting with the ATO.
Where the executor is an Australian resident and the property simply passes to beneficiaries or a surviving joint tenant, no clearance certificate is needed. But where the personal representative sells the property to someone else, one is required. It is easy to assume the estate exemption covers a sale. It does not.
Certificates are valid for 12 months. Apply when you decide to sell, not when you accept an offer.
Generally two years from the date of death. If the property was the deceased's main residence and you sell under a contract that settles within two years, the capital gain is usually exempt. The clock runs from the date of death, not from the grant of probate.
The exemption depends on the property having been the deceased's main residence and not used to produce income just before they died. Different rules apply where the deceased acquired the property before 20 September 1985.
Within the two years it does not matter whether the property was rented out or lived in. That surprises people, and it is genuinely useful — renting it out while the estate is administered does not cost you the exemption, provided you settle in time.
The clock is shorter than it looks. It runs from death. If probate takes seven months, you have seventeen left, not twenty-four.
There is a safe harbour if you run late. The ATO allows an automatic extension of up to 18 months where more than 12 months of the first two years went on a listed problem — the will or the ownership being challenged, a life interest delaying the sale, genuine complexity in administering the estate, or a settlement that fell through for reasons outside your control — and the property was listed for sale as soon as practicable and sold within 12 months of listing.
What does not count, by name: waiting for a better market, renovating, beneficiary convenience, or an executor who simply did not get on with it.
And if you do miss the window, it is a cost rather than a catastrophe. It means a partial exemption calculation and a conversation with the estate's accountant, not the loss of everything.
Be careful. Under section 58 of the Succession Act 2006 (NSW), an eligible person has 12 months from the date of death to bring a family provision claim against the estate. If you have already handed out the proceeds, getting them back is far harder than holding on to them.
The section says an application "must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent."
The point for an executor is simple: selling and distributing are two different decisions, and executors routinely treat them as one. Selling is usually fine. It is the distribution that carries the risk.
Yes. The NSW Contract for Sale of Land changed on 1 June 2026, including a new cooling-off notice. A deceased estate sale uses the same contract as any other sale, so the changes apply to you. Identity checks now apply to conveyancing as well.
A deceased estate sale is a wills and estates problem and a conveyancing problem at the same time. It is common for a family to end up with one firm doing the probate and another doing the conveyancing, and for neither of them to be watching the two-year date. Michael handles both sides of it himself.
Michael Nahoum is an engineer turned solicitor — around 13 years as a civil engineer, including work on Transport for NSW infrastructure projects, before being admitted in 2022. On the property side that background earns its keep: reading a title, a survey, a building report.
If the sale is already under way, or already exchanged, or you have just realised something above applies to you — that is still worth a call. Most people come to this partway through, not at the start.
Related reading: Probate in the Hills District · Contesting a will in NSW · Is your super covered by your will?
This article is general information only and is current as at 12 August 2026. It is not legal advice. Tax rules and land registry requirements change, and the right course depends on the particular estate. Verify the current position before acting, and contact Michael Campbell Law for advice about your situation.
As executor you can generally list the property and exchange contracts before probate and the transmission application are finished. But both need to be complete in time to register the buyer's transfer at settlement. An administrator, where there is no will, has no authority to act until the grant is made.
Generally two years from the date of death, if the property was the deceased's main residence. The clock runs from death, not from the grant of probate. The ATO allows an automatic extension of up to 18 months in limited circumstances, such as the will being challenged.
If you are selling to a buyer, yes. Since 1 January 2025 the purchaser must withhold 15% of the price on all property sales at any value unless you provide one before settlement. Certificates can take up to 28 days to issue.
Not always safely. An eligible person has 12 months from the date of death to bring a family provision claim. Selling the property and distributing the proceeds are separate decisions, and it is usually the distribution that carries the risk.
If it was held as joint tenants, it passes automatically to the surviving owner and does not form part of the estate. The survivor lodges a Notice of Death. If it was held as tenants in common, the deceased's share passes under the will.
It is the dealing that registers an executor or administrator on the title as personal representative, using NSW Land Registry Services Form 03AE under section 93 of the Real Property Act 1900. It does not ordinarily attract transfer duty, though registration and conveyancing fees apply.
A free 15-minute phone call is the quickest way to find out whether we can help — whether probate has been granted yet or not, and whether the sale is still an idea or already under way.
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