Transferring property from a deceased estate in South Australia

When someone who owned property in South Australia dies, the first question is not what the will says. It is how the title was held. That one fact decides whether the property passes automatically to a co-owner, or whether it becomes part of the estate and needs a court grant before anyone can deal with it.

It comes up for families on the Victorian side of the border too: a parent in Cranbourne who owned a house in Adelaide, or an investment unit in Mount Gambier held with a sibling. The South Australian steps are different from the Victorian ones, and a Victorian grant of probate does not work in South Australia on its own.

Start with the title

A South Australian title records co-owners as either joint tenants or tenants in common. Land Services SA suggests ordering a title search first, because the form of ownership dictates what steps to take.

Joint tenants: survivorship, and no probate

The Legal Services Commission's Law Handbook puts it plainly. Where property was held as joint tenants, the deceased's interest does not form part of the deceased estate and cannot be left to someone in a will. The surviving joint tenant automatically owns the whole property, and no grant of probate is required.

A will that leaves "my half of the house" to someone has no effect on a joint tenancy. The survivor takes it.

The paperwork

The death still has to be recorded on the title before the property can be sold, mortgaged or transferred. The survivor lodges an Application to register death by survivor with Land Services SA. Its guidance lists what is needed:

• a photocopy of the death certificate
• the completed application form
• verification of the applicant's identity, to the Registrar-General's standard
• verification of the applicant's authority to deal with the property
• the lodgement fee.

The Law Handbook strongly advises having a conveyancer or lawyer prepare and lodge the application, because the surviving joint tenant's identity must be verified. That is the part we do. Land Services SA itself recommends using a registered conveyancer or solicitor for any dealing with land after a death.

Sole owners and tenants in common: a grant first

Where the deceased owned the property alone, or as a tenant in common, there is no survivorship. The property, or the share, passes under the will or under the laws of intestacy. Before anything can happen to the title, someone needs the legal authority to deal with it.

That authority is a grant of probate (where there is a will naming an executor) or letters of administration (where there is not). The Courts Administration Authority's probate page is direct about it: Land Services SA will not process a transfer of a deceased person's sole interest, or tenant in common interest, without a grant.

Applying for the grant is done through the CourtSA online portal, personally or through a lawyer. It is not conveyancing, and we do not do it. A solicitor who practises in wills and estates is the right person, particularly if the will is unclear, someone is contesting it, or there is no will at all.

The transmission application

Once the grant exists, the executor or administrator is registered on the title by a transmission application. Land Services SA lists the documents: a complete copy of the probate with a copy of the registrar's certificate attached, the completed transmission application form, and verification of identity and authority.

After that, the executor holds the property as the estate's legal personal representative. From there it goes one of two ways.

1. Transfer to a beneficiary, as the will or the intestacy rules direct.
2. Sale, with the proceeds distributed through the estate.

The transmission and the transfer or sale are conveyancing, and that is where we come in.

If the grant is from Victoria

This is where families on our side of the border get caught. A grant of probate from the Supreme Court of Victoria does not, by itself, let an executor deal with land in South Australia.

The Courts Administration Authority explains that where you hold a grant from an interstate court and need it registered in South Australia to deal with the assets here, you apply to register it with the Probate Registry, under section 57 of the Succession Act 2023 (SA). The application includes the original interstate grant or an authenticated copy, a copy of the death certificate, and a description and value of the South Australian assets and liabilities.

Build that step into your timetable. If the Adelaide property is being sold to pay out beneficiaries, settlement cannot happen until the grant has been registered in South Australia and the transmission application can be lodged.

Stamp duty

South Australia's Stamp Duties Act exempts the transfers that simply carry out the estate. Section 71(5)(h) exempts a conveyance to the executor or administrator, and to beneficiaries under the will or the intestacy rules. RevenueSA's guide is equally clear that a sale by the executor to a beneficiary is dutiable. So where three siblings inherit and one buys out the other two, duty is payable on the shares bought.

Nothing is payable where a joint tenancy passes to the survivor by survivorship. There is more on how duty works on family transactions in our guide to transferring property between family members in South Australia.

Selling the property out of the estate

When the executor sells, the sale is an ordinary South Australian sale with the executor as vendor. The usual rules apply:

• the executor must serve a Form 1 vendor's statement on the buyer at least 10 clear days before settlement, under section 7 of the Land and Business (Sale and Conveyancing) Act 1994. Our guide to the Form 1 covers what it must contain
• the buyer has the ordinary two clear business day cooling-off period on a private sale
• the executor needs the grant, and the transmission application, before settlement can happen.

An executor can usually sign a contract before every step is complete, but the settlement date has to allow for them. A contract that promises settlement in 30 days when the Victorian grant has not yet been registered in South Australia is a contract the estate may not be able to perform.

What we do, and what goes to a solicitor

Our guide on the difference between a conveyancer and a solicitor in South Australia explains why the line falls where it does.

Questions we get asked

Mum and Dad owned the house as joint tenants. Dad has died. Do we need probate for the house?

Not for the house. Mum owns it by survivorship. She lodges an application to register death so the title shows her as sole owner. Other assets in Dad's sole name may still need a grant.

Can the executor sell before probate is granted?

The executor can sign a contract, but cannot settle without the grant and the transmission application. Set a settlement date that allows for the grant, and for registration in South Australia if the grant is from another state.

Do we need a South Australian lawyer?

For the grant, you need someone able to apply in South Australia, which may be the executor personally or a South Australian solicitor. For the conveyancing, a registered South Australian conveyancer can act from anywhere, because the work is electronic. We are registered in South Australia and act from Cranbourne.

Talk to us when the estate is ready

We are registered in South Australia with Consumer and Business Services and handle ownership transfers, including survivorship applications, transmissions and estate sales, from our office in Cranbourne, Victoria. We do not have an Adelaide office. We are open Monday to Friday, and on weekends by appointment, which helps when the family is working through this around jobs.

Get in touch to talk it through, or ask us for a quote once you know how the title was held.

This article is general information about South Australian conveyancing and is not legal advice for your particular transaction. Speak to us about your specific circumstances.