We often come across situations where the owner of a property has died and the property is being sold. In such circumstances it is important to ensure that the correct seller is identified and appropriate special conditions are included in the contract.

The following are the likely scenarios and in each case it is assumed that the deceased has made a will:

Sole Owner Has Died

The personal representative of the deceased will be the seller who must ensure that he/she is registered at the Titles Office as personal representative of the deceased. If the personal representative has not been registered at the Titles Office before the contract is entered into then there should be a special condition making the contract conditional upon the seller being registered at the Titles Office as personal representative of the deceased.

Joint Owners & 1 Owner Has Died

It first needs to be established whether the registered owners held the property as joint tenants or tenants in common by undertaking a title search.

If the registered owners held the property as joint tenants then the deceased share will automatically vest in the survivor. Notification of the death of 1 joint tenant will need to be given to the Titles Office. The surviving joint tenant will be the seller. There ought to be a special condition making the contract conditional upon the seller being registered as sole owner if such registration has not taken place before the contract is entered into.

If the registered owners held the property as tenants in common then the deceased’s share will pass in accordance with the terms of the deceased’s will. The deceased may have bequeathed his/her share to the surviving registered owner or to someone else. Either way, the personal representative of the deceased will need to be registered on the title. The seller will be the surviving registered owner and the personal representative of the deceased. There should be a special condition making the contract conditional upon the personal representative being registered at the Titles Office as the personal representative of the deceased.

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The scenarios above are general only and there may be other factors or complications that may affect the identity of the seller and the need for other special conditions. Specific legal advice should be sought before a contract is entered into.