Dealing with a loved one’s property is rarely simple, even when their wishes are clear. Victorian law sets out a specific process for transferring real estate that forms part of a deceased estate, and getting the sequence right — probate, transmission, then transfer — matters both for legal compliance and for whether the transfer attracts stamp duty at all.
This guide walks through that process step by step. If you’re an executor or beneficiary currently navigating this, our estate conveyancing service supports families and executors through the entire process across Dandenong and Greater Melbourne.
Step 1: Work Out How the Property Was Held
Before anything else, the way the deceased held title determines the path forward.
Joint tenancy — common for couples — means the deceased’s share passes automatically to the surviving joint owner by survivorship. Probate is often not required to deal with the property itself, though a Transmission Application is still lodged with Land Use Victoria to
update the title to reflect the surviving owner.
Sole ownership or tenancy in common means the deceased’s interest in the property forms part of their estate and generally requires a Grant of Probate (if there’s a valid will) or Letters of Administration (if there’s no will) before the executor or administrator can deal with the property at all.
If you’re unsure which applies, the Certificate of Title will show how the property was held — this is one of the first things worth checking before assuming either path.
Step 2: Obtain the Grant of Probate or Letters of Administration
Where probate or letters of administration is required, the executor named in the will (or, in an intestacy, an eligible administrator) applies to the Supreme Court of Victoria. This grant is the legal authority that allows the executor or administrator to deal with the deceased’s assets, including real estate.
This step alone can take weeks to a few months depending on the estate’s complexity and the court’s processing times, so it’s usually the longest part of the overall timeline.
Step 3: Lodge a Transmission Application
Once probate or letters of administration has been granted, a Transmission Application is lodged with Land Use Victoria. This places the executor or administrator on the Certificate of Title in that capacity — it does not yet transfer beneficial ownership to anyone. Its purpose is to give the executor or administrator legal control to deal with the property as part of administering the estate, including selling it or transferring it to beneficiaries in the next step.
Step 4: Transfer to Beneficiaries, or Sell
- Transferred directly to the beneficiaries entitled under the will or the rules of intestacy, or
- Sold, where the will directs a sale, or where cash is needed to pay debts or distribute the estate fairly among beneficiaries
Stamp Duty: When the Exemption Applies (and When It Doesn't)
This is the area with the most genuine confusion, so it’s worth being precise. Under section 42 of the Duties Act 2000 (Vic), a transfer of property from a deceased estate to a beneficiary can be exempt from stamp duty — but only where the transfer:
- is made in accordance with the terms of the will (or codicil), or the rules of intestacy if there’s no will, and
- is made by the executor or administrator to a beneficiary of the estate, and
- is not made for valuable consideration
Where all three conditions are met, the transfer is processed through Duties Online and assessed as exempt. This applies regardless of the beneficiary’s relationship to the deceased — it isn’t limited to spouses or children, unlike the family transfer exemptions covered in our guide to transferring property to a family member.
Where the Exemption Breaks Down
A handful of common situations take a transfer outside section 42, meaning standard duty applies instead:
- Equalisation payments. If one beneficiary pays another (or pays the estate) to balance out an uneven distribution — for example, to “buy out” a sibling’s share of a jointly inherited property — that portion of the transfer is treated as consideration and loses the exemption for that part of the value.
- Deeds of Family Arrangement. If beneficiaries agree to distribute the estate differently from what the will actually says, the transfer no longer strictly conforms to the will, and the exemption may not apply to the distribution made under the new arrangement.
- Testamentary trusts. Where a will establishes a trust, the first transfer from the executor to the trustee is generally treated as exempt if it conforms to the will and isn’t for consideration — but a second transfer, from the trustee to the eventual beneficiary, is no longer covered by section 42 since the trustee isn’t the executor by that point. A different exemption may or may not apply, depending on the structure.
- Life estates. The creation or transfer of a life estate or estate in remainder is dutiable property in its own right, and if not otherwise exempt, requires its own valuation for duty purposes.
None of these situations are unusual in real estates — splitting one property between several siblings, or setting up a trust for a minor beneficiary, are both common. The point is that the exemption is genuinely conditional, not automatic, and the specific structure of the distribution determines whether it applies.
Documents You'll Typically Need
To process a deceased estate transfer (and claim the exemption where it applies), expect to need:
- The sealed Grant of Probate from the Supreme Court (with the will attached), or Letters of Administration if there’s no will
- A completed Digital Duties Form lodged with the State Revenue Office
- If entitlement isn’t clear from the will, or the estate is intestate: an inventory of the estate’s assets and liabilities, and a distribution statement prepared by the executor or administrator
- Evidence of the property’s value at the date of transfer — typically a licensed agent’s appraisal with a current rates notice, or a formal valuation
How Long Does It Take?
There’s no fixed timeline, but realistically: probate or letters of administration alone can take weeks to a few months, the Transmission Application follows once granted, and the final transfer or sale proceeds after that. For a straightforward estate with a clear will and no disputes, allow several months from application to final transfer. More complex estates — multiple properties, disputes among beneficiaries, or unclear title history — can take considerably longer.
Common Mistakes
Assuming all deceased estate transfers are automatically duty-free. As covered above, the exemption is conditional — equalisation payments and Deeds of Family Arrangement are common ways this assumption goes wrong.
Skipping the Transmission Application. Attempting to transfer directly to beneficiaries without first placing the executor on title through a Transmission Application can cause delays or rejected lodgements.
Not checking how the property was held early. Assuming probate is required (or isn’t) without first confirming the title structure can waste time and, in some cases, professional fees.
Frequently Asked Questions
Do I always need probate to deal with a deceased person's property?
Not always. If the property was held as joint tenants, the surviving owner generally takes it by survivorship, and a Transmission Application alone may be sufficient. Sole ownership or tenancy in common generally does require probate or letters of administration first.
Is a deceased estate transfer always exempt from stamp duty?
No. It’s exempt under section 42 of the Duties Act only where the transfer strictly conforms to the will or intestacy rules, is made by the executor or administrator, and isn’t made for valuable consideration. Equalisation payments, family arrangements that depart from the will, and certain trust structures can all affect this.
Can beneficiaries change how an estate is distributed from what the will says?
Yes, through a Deed of Family Arrangement, but doing so can affect the stamp duty exemption for the resulting transfer, since it no longer strictly follows the will’s terms.
Who can help manage this process?
An executor typically works with both a solicitor (for the probate application itself) and a conveyancer (for the property transfer or sale that follows). At PRD Conveyancing, we manage the property side — Transmission Applications, transfer documentation, and coordinating settlement — working alongside the legal representatives handling probate.
Speak to Our Team
Estate property matters carry both legal complexity and real emotional weight. We aim to make the property side of the process as clear and manageable as possible, so you can focus on what matters most. Speak to our team about the estate you’re managing.
Sources & References
- State Revenue Office Victoria — Deceased estates and duty
- Duties Act 2000 (Vic), s.42
- Administration and Probate Act 1958 (Vic)
- Revenue Ruling DA-051 — Transfer of dutiable property from a deceased estate
This article provides general information about deceased estate property transfers in Victoria and is not legal advice. Probate, administration, and duty outcomes depend on the specific estate. Speak with a solicitor regarding probate matters and a licensed conveyancer regarding the property transfer itself.
