Disclaimer — This guide provides general educational information only. It is not legal, financial, or tax advice. Estate-administration obligations vary…
Disclaimer: The material below is provided for general educational purposes only and does not constitute legal advice. Probate rules, Titles Queensland forms, and transfer-duty thresholds can change. Executors and beneficiaries should obtain tailored guidance from a Queensland succession-law solicitor and, where relevant, a conveyancer before acting.
Real property (land and buildings) often makes up the bulk of a Queensland estate’s value. Although an executor’s formal authority over the deceased’s assets begins only after a grant of probate, forward planning saves time and protects sale contracts from collapsing.
This guide explains:
- which property interests do (and do not) require a grant
- how to lodge Transmission Applications with Titles Queensland
- special issues for joint tenancies, trusts, and mortgage-encumbered land
- practical tips to avoid costly requisitions and settlement delays.
Which Property Actually Needs Probate?
| Ownership Type | Does It Pass via Probate? | Executor’s Action |
|---|---|---|
| Sole-name freehold house | Yes | Obtain grant → lodge Transmission Application Form 5 → register as “executor of the will” |
| Joint tenancy (e.g., home owned with surviving spouse) | No – passes by survivorship | Lodge Record of Death Form 4 with death certificate; no probate required |
| Tenancy in common (50 % share) | Yes | Grant required → Form 5 for the deceased’s share |
| Land held by family trust | No – trust continues | Trustee(s) handle transfer under trust deed (executor’s role limited) |
| Company-owned property | No – shares form part of estate instead | Probate for share transmission; ASIC forms then property transfer |
| Mortgagee-in-possession title | Yes | Executor also deals with discharge or refinance before sale |
Step-by-Step: Transferring Property After Probate
Locate Title Documents and Encumbrances
- Search the Queensland Land Registry to confirm title reference, tenancy type, and any caveats or mortgages.
- Retrieve the original Certificate of Title if one still exists (pre-1994 titles).
Apply for Probate
- Publish a Notice of Intention to Apply (14-day wait).
- File probate papers; uncontested grants issue in 3-6 weeks.
Lodge Transmission Application (Form 5)
- Annex sealed grant of probate, title search, and death certificate.
- Pay Titles Queensland lodgement fee (July 2025: $226.00 per lot).
- The land then vests in you “as personal representative”—you can sell or transfer.
Distribute or Sell
- Sale: sign Form 1 Transfer to buyer; provide notice of death to local council and water authority; account for CGT if property was an investment.
- In-specie distribution: transfer to beneficiary using Form 1; assess transfer duty (concessional if beneficiary named in will).
Finalise Estate Accounts
- Record sale proceeds or valuation for distribution statement.
- Retain title and conveyancing invoices for reimbursement.
Joint Tenancy vs Tenancy in Common — Quick Comparison
| Joint Tenancy | Tenancy in Common | |
|---|---|---|
| Survivorship? | Yes – surviving co-owner automatically owns 100 % | No – deceased’s share enters estate |
| Needs probate for transfer? | No (Record of Death) | Yes (Form 5 after grant) |
| Stamp/transfer duty on survivorship? | Nil | Duty may apply on eventual transfer to beneficiary |
| Typical use case | Family home of spouses | Investment partners / blended-family asset planning |
Special Issues Executors Face
Encumbered Property
- Mortgage discharge: lender often refuses release until transmission is registered.
- Bridging finance: executors may need estate loan if sale completes before grant.
Caveats and Family Provision Claims
- A disgruntled relative can lodge a caveat over the title to stop settlement.
- Early mediation and clear beneficiary communication reduce this risk.
Foreign-Resident Beneficiaries
- Foreign Resident Capital Gains Withholding (FRCGW) may apply to sales over $750 000.
- Executor must obtain clearance or pay 12.5 % to ATO.
Testamentary Trusts
- If the will creates a testamentary trust, property can be transmitted straight into the new trust name; obtain tax advice first.
Practical Tips to Avoid Requisitions
- Triple-check full legal names on Form 5 match probate grant.
- Insert tenancy type exactly as on title (“as joint tenants” vs “as tenants in common in equal shares”).
- If multiple lots, list each title reference separately—Titles Queensland rejects “see attached schedule” shortcuts.
- Lodge a Priority Notice when marketing property before the Transmission registers, protecting the sale contract for 60 days.
Frequently Asked Questions
Can we list the property for sale before probate?
Yes, but you cannot settle or transfer title until the Transmission registers. Use long settlement dates (6–10 weeks) or a subject-to-probate clause.
Does land in another state need separate probate?
Usually the Queensland grant must be resealed in that state, or a fresh grant obtained—check local rules (e.g., NSW Supreme Court).
Is transfer duty payable when property vests in the executor?
No. Duty arises only when the executor transfers to a beneficiary or buyer.
What if the deceased’s partner paid for renovations but is not on title?
Consider a Family Provision negotiation or deed of family arrangement before transfer.
How long must I keep conveyancing records?
The ATO recommends at least five years after estate completion in case of CGT queries.
Key Takeaways
- Confirm ownership structure early—joint tenancy might bypass probate entirely.
- A sealed grant plus Form 5 Transmission is mandatory for sole-name or tenancy-in-common land.
- Accurate forms and prompt requisition responses keep Titles Queensland turn-around to 5–10 business days.
- Caveats, mortgages, or interstate property can add weeks; plan settlement dates conservatively.
- Executors who prepare asset schedules and draft notices during the testator’s illness can shave months off administration.
Sources / Citations
- Succession Act 1981 (Qld) ss 52–54 – vesting of real property in personal representative.
- Uniform Civil Procedure Rules 1999 (Qld) rr 598–603 – probate notice and filing.
- Land Title Act 1994 (Qld) – forms and registration requirements.
- Titles Queensland Fee Schedule, July 2025.
- Queensland Revenue Office Public Ruling DA019.1.2 – transfer duty on deceased estate property.