The dangers of subject-to-Probate contracts

Supreme Court By Wyrm world

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Offer and Acceptance contracts are sometimes made subject to Probate, but are these contracts valid?

When a sole owner or Tenant in Common passes away, either the executor of the will needs to be granted Probate (if a will was left), or (if a will was not left) a family member or spouse needs to be granted Letters of Administration, before the property can be transferred.

Potential sellers sometimes approach agents to sell before Probate has been granted. To deal with this situation, it’s not uncommon for agents to write up contracts that are “subject to Probate”.

However, until Probate has been granted by the Supreme Court, would-be sellers don’t have the authority to transact on the property.

Until this time, a would-be seller doesn’t have the authority to sign an Offer and Acceptance.

Creating contracts that are subject to Probate can bring all parties involved into a sticky situation. For example, what if Probate was disputed after a buyer had their Offer accepted? A long or indefinite delay might arise, and the situation would be made worse if the buyer had already handed in a notice to leave their rental property.

To avoid such problems, wait until you’re holding the required Probate or Letters of Administration before writing the Offer and Acceptance.

Image by Purple Wyrm via Flickr.

Peter Fletcher

Meet Peter Fletcher, a real estate expert with over 30 years of experience. As the Managing Director at Rezzi, Peter is a licensed settlement agent and real estate agent. His knowledge and expertise have been recognized in the industry, serving as a councillor and trainer for REIWA and AICWA. With Peter on your side, expect expert guidance and unwavering support throughout your property journey.