As the executor or administrator, you may be required to determine the value of the property for distribution and/or tax purposes. If the will does not tell you how to determine the value, you may seek an independent valuation from a specialist or source-free appraisals from three different real estate agents to determine an average value.

If the property is to be sold the final sale price will determine how much money goes towards the total estate value.

During the estate administration process the executor or administrator can prepare the property for sale however the final title transfer can only occur once a grant of probate or letters of administration is issued by the Supreme Court.

As the executor or administrator you have an obligation to carry out the terms of the will and / or administer the estate as soon as practicable.

An inherited property is exempt from CGT if you dispose of it within 2 years of the deceased's death, and either:

• the deceased acquired the property before September 1985.
• at the time of death, the property was the main residence of the deceased and was not being used to produce income.

You must obtain specialist tax advice regarding assets and CGT implications.

The executor is entitled to be reimbursed for any out-of-pocket expenses incurred as a result of administering the estate.

If estate monies are available, the executor may pay debts and testamentary expenses as and when they fall due.

If no monies are available, the executor may borrow money on behalf of the estate or ask the beneficiaries to contribute to the expenses so that the estate can be administered, assets sold and monies distributed to the beneficiaries after all debts and expenses have been paid.

It is good practice to obtain approval from the residuary beneficiaries before incurring expenses on behalf of the estate such as clearing the property, painting, repairs, real estate agent fees, conveyancing and legal fees.

In our experience, it is important to maintain transparency and open communication with all beneficiaries throughout this process.

Whilst each bank has a different process most banks will freeze mortgage payments during estate administration (you do not have to personally pay the mortgage) but monies owning are to be paid in full at the time the property is sold.

If the sale of the property cannot cover the outstanding mortgage other assets need to be sold to repay the mortgage in full.

Although we do not recommend this course of action, the executor or administrator can put the property on the market and enter into a contract so long as the executor / administrator is listed as the vendor and special conditions are included to ensure the buyer is aware of the following:

• the property is being sold by the estate
• the sale is conditional on the grant of probate or letters of administration being granted
• the settlement of the property will take place within a specific period after the grant of probate or letters of administration are issued

Yes, if they happen to have an interest connected to the property.

Where a person has an unregistered interest in real estate, a caveat can be lodged to give notice of their interest and to prevent any further dealings with a property until the interest can be registered. In any dealings with land, registered interests are given priority over unregistered interests so a caveat is required to give the person affected notice of any dealings with the land in question and time to formalise their interests.

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Yes, by stopping the grant of probate being issued.

A probate caveat prevents (at least temporarily) an executor or administrator from obtaining a grant of probate or letters of administration that would enable the finalisation of an estate. It allows the person lodging the caveat to raise concerns they may have (such as whether the testator lacked testamentary capacity, or whether there is a later will that revokes an earlier will, for example) before probate or letters of administration are granted.

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Yes, if they are living in the property and the dwelling forms part of an inadequate family provision claim.

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In the absence of an unregistered proprietary interest, invalid will claim or inadequate family provision claim: not really.

Once a grant of probate has been issued the executor has the authority to administer the estate in accordance with the terms of the will.

Whilst beneficiaries can potentially challenge a sale in court if they believe the executor is acting in bad faith, against the best interests of the estate, or against the terms of the will they generally cannot stop the sale of the property if the will grants the executor the power to sell estate property.

Whilst it might seem like a good idea to generate income from a deceased’s property during the estate administration process there are some considerations to make around this.

Legislation outlines that a rental agreement can only be entered into upon receipt of a grant of probate or letters of administration.

Taxation obligations may change if the deceased’s property has been used to generate income – check with your tax adviser or accountant regarding your specific circumstances.

If the deceased’s property was already rented to tenants, the lease agreement will continue between the tenant and the executors or administrators. If you need to terminate the lease you will need to provide the notice outlined in the existing lease agreement. You will also need to advise the letting agent or Consumer Business Services Renting & Letting Advice | Consumer and Business Services (cbs.sa.gov.au) of the death in case the lease agreement ends whilst the estate is being administered.