Probate and Property Transfer — What Happens After Death in Australia (2026)

When a property owner dies, the process of legally transferring the property to new owners — whether heirs, beneficiaries, or buyers — goes through a legal process that may include probate. Here is how it works in Australia.

What Is Probate?

Probate is the formal legal process through which a court confirms that a will is valid and authorises the executor to administer the estate.

When probate is granted, the executor receives a Grant of Probate — a court document that gives them the legal authority to:

• Collect estate assets (including property)
• Pay estate debts (including mortgages)
• Distribute the estate to beneficiaries according to the will

If there is no will (intestacy): A family member or other interested party applies for Letters of Administration — which serves the same purpose as a Grant of Probate, authorising an administrator to manage the estate.

Is Probate Always Required for Property?

Not always — it depends on how the property was owned:

→ See Joint Tenants vs Tenants in Common for the key difference.

Probate for Joint Tenants — Survivorship Without Probate

If property is owned as joint tenants, the deceased’s interest automatically passes to the surviving joint tenant(s) by the right of survivorship. Probate is generally not required for this transfer.

To formally register the transfer:

1. The surviving owner applies to the state land registry
2. Provides: death certificate + existing title information + applicable forms
3. The title is updated to show the surviving owner(s) only

This is generally faster and simpler than probate — often achievable in 4–8 weeks.

Probate for Tenants in Common or Sole Owner — The Probate Process

If the deceased owned the property as a sole owner or as a tenant in common, the property is part of the estate and probate (or Letters of Administration) is typically required.

The probate process:

1. Locate the original will — the executor named in the will applies for probate
2. Apply to the Supreme Court of the state or territory — the process and fees vary by state
3. Grant of Probate issued — typically 4–12 weeks after application (longer in contested estates)
4. Estate administration — executor pays debts, manages assets, prepares for distribution
5. Property transfer — once probate is granted, the executor can:
   • Transfer the property to the beneficiary (if the will directs this)
   • Sell the property and distribute the proceeds
6. Title registration — the conveyancer registers the new ownership at the state land registry

Total timeline: Property transfer after death (via probate) typically takes 6–18 months from date of death to final registration. Complex or contested estates take longer.

The Mortgage During Probate

The existing mortgage does not stop simply because probate is in progress. During the administration period:

• The executor should notify the lender of the death immediately
• Repayments should continue (from estate funds) to avoid interest accrual and credit damage
• Most lenders have a bereavement team and will work with the executor
• If estate funds are insufficient to maintain repayments, the lender should be contacted promptly

The mortgage is typically paid out at the end of the estate administration — either from the sale proceeds or refinanced into the beneficiary’s own name.

Costs of Probate

Probate involves several costs:

These costs are paid from the estate before distribution to beneficiaries.

Dying Without a Will (Intestate)

If there is no will, the estate is distributed according to the intestacy laws of the state or territory where the deceased lived. Generally:

• Spouse/de facto partner receives the majority or all of the estate
• Children share remaining assets
• More distant relatives receive nothing unless there is no closer family

Intestate estate + property = administration required: A family member applies for Letters of Administration, then the administrator manages the estate using the same process as probate (but with the state’s intestacy rules determining who receives what).

Frequently Asked Questions

Can the executor deal with the property before probate is granted?

In most cases, the executor cannot complete a formal property transfer before probate is granted. However, the executor can maintain repayments, market the property for sale (contracts conditional on probate), and take other preparatory steps.

What if the will is contested?

A contested estate (family provision claim, validity challenge) can significantly delay probate — sometimes by years. The mortgage and other estate obligations continue to accrue during this period. Keep the lender informed of any dispute.

What happens to jointly owned property in a will?

A jointly owned property (joint tenants) passes by survivorship — not by the will. The will cannot direct where a joint tenancy asset goes. This is why the distinction between joint tenants and tenants in common is so important for estate planning.

Related Guides

• Inheriting a Property With a Mortgage
• Transferring Property to a Family Member
• Joint Tenants vs Tenants in Common
• What Happens to Your Mortgage If You Die?
• Property Ownership Structures Hub

This article provides general information about probate and property transfer in Australia. Probate law varies by state and territory. Estate administration is complex — speak with a solicitor specialising in wills and estates for advice tailored to your situation. Find advisers through MoneySmart.