When a buyer or seller dies before settlement in Queensland

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Kooky

Builder of Shaka, the payment router that pays every agent their commission on closing date.

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A contract to sell a home is signed, and a few weeks later one of the people who signed it dies, or has a stroke, or is no longer able to make decisions. The same questions follow within days. Is the sale still on? Who can sign now? What happens to the settlement date that is three weeks away?

The short answer is that the contract normally carries on, and that somebody else steps into the shoes of the person who can no longer act. The longer answer is about paperwork and time: the land register only accepts a signature from a person whose authority it can see, and getting that authority recorded takes longer than most settlement periods allow. This guide sets out the general rules for Queensland as published by the Queensland Courts, Titles Queensland, the Queensland Revenue Office and the standard contract itself, for the family, for an executor, and for the buyer or seller on the other side who is waiting. It describes general rules. Each estate and each contract differs, and what applies in a given case is a matter for the solicitor acting in the sale.

Notice and processing times from Queensland Courts guidance on applying for a grant; the extension from clause 6.2 of the REIQ residential contract, First Edition.

The contract does not end with the person

The general rule is an old one. The Queensland Law Handbook, published by Caxton Legal Centre, puts it this way: a personal representative must generally perform the contracts the deceased entered into that could have been enforced against them, and may enforce the contracts the deceased was entitled to enforce. The exceptions are a contract that says it ends on death, and a contract for something only that person could do, such as writing a book or performing a concert. Selling or buying land is not personal in that sense.

Queensland law firms that have written about the situation describe the same result for a sale of land. Wallace Lawyers, writing in June 2024, says a sale contract is not terminated when the seller dies before settlement unless a special condition expressly says so. Lockett McCullough Lawyers says the contract stays on foot whichever party dies: if it is the seller, the right to the balance of the price passes to the personal representative for the estate; if it is the buyer, the property becomes part of the buyer's estate once the sale completes.

"Personal representative" is the term that covers both kinds of person who can act for an estate. An executor is named in the will. An administrator is appointed by the Supreme Court when there is no will, or no executor able or willing to act. The Succession Act 1981 is the Queensland statute that governs both, and that sets the order in which relatives inherit when there is no will.

What the standard REIQ contract says

The standard contract for a Queensland home is published by the REIQ and approved by the Queensland Law Society. The current form is the Contract for the Sale and Purchase of Residential Real Estate, First Edition, dated August 2025, which replaced the two older residential contracts. The Queensland Law Society told its members on 1 October 2026 that updated versions had been issued with a small change to clause 7.11, and that the edition number had not changed. That amendment has nothing to do with death or capacity.

The first is in the interpretation clause. Clause 11.10(1)(d) says that a party includes the party's executors, administrators, successors and permitted assigns. That one line is what carries the contract across to the estate: wherever the terms say "Seller" or "Buyer", they also mean the person who administers that party's estate.

The second is in the seller's warranties. In clause 7.4(2)(c) the seller promises to be capable of completing the contract at settlement, unless the seller dies or becomes mentally incapable after the contract date. The effect is narrow. A seller's death or loss of capacity after signing is not, of itself, a broken promise under that warranty.

The same two provisions sat at different numbers in earlier editions: in the Seventeenth Edition of the Contract for Houses and Residential Land, used from January 2022, they were clauses 10.9(1)(d) and 7.4(3)(c).

That is why Wallace Lawyers suggests that where a seller's health is a known concern when the contract is prepared, a special condition can set out each side's rights in advance, such as a right to extend or a right to terminate. Where no such condition exists, the ordinary terms about time and default keep applying.

Who steps in when a seller dies

Who signs for a seller who has died depends on how the property was owned and on whether there is a will. Titles Queensland, which keeps the land register, has a separate form for each case, described in its Land Title Practice Manual.

An executor's authority comes from the will and from the Succession Act, not from the court. QLD Estate Lawyers, in commentary updated in August 2026, notes that under section 45 of the Act the estate vests in the executor from the date of death, and that an executor may sign a contract before any grant issues. The grant of probate does not create the authority. It proves it, to the buyer, to the buyer's lender and to the registry.

When there is no will, nobody has that authority until one is given. The grant in that case is called letters of administration on intestacy, and RCB Law notes that it can take longer than probate.

Why the register has to change before the transfer

A transfer of land in Queensland is registered only if it is signed by, or for, the registered owner. After a death the registered owner can no longer sign, so the register has to show someone else first. This step is called transmission by death.

The Land Title Practice Manual deals with the exact case of a seller who dies under contract. It describes the buyer's interest as an equity under a contract of sale between the deceased and a purchaser, and says the personal representative should simply be recorded on the title as personal representative; the contract is then completed by an ordinary Form 1 transfer from the personal representative to the buyer.

Form 5 is used when the applicant holds a grant from the Supreme Court of Queensland, or a grant from elsewhere that Queensland recognises.

Form 5A is the route without a grant. According to the manual, the Registrar of Titles then acts in a role similar to a court of probate: the original will is deposited, the applicant makes a declaration, and the registrar may ask for more evidence about how the will was signed or about the will-maker's capacity. Where there is no will, Form 5A is available only if the gross Queensland estate, leaving out property held as a joint tenant, is $300,000 or less and no letters of administration were granted in Queensland within six months of the death. Above that figure, a grant is needed.

So probate is not always essential to transfer land, and the manual says as much. It adds that many people obtain it anyway, for confirmation that the will is valid and for the executor's own protection. In a sale under contract there is a further reason: the other side, and any lender involved, will usually want the certainty a grant gives. Which route suits depends on the estate.

How long a grant takes

The Queensland Courts publish the steps for applying for a grant, and the first three are waiting periods.

The court's guidance says the application can be filed on the fifteenth day after the notice appears, or the next day the registry is open. Anyone with an interest in the estate may lodge a caveat in the meantime, which stops the process until it is dealt with. If the registry has a question, it issues a notice of requisition.

Before any of this can start, the family needs the death certificate and the original will, and Wallace Lawyers notes that a death certificate alone can take several weeks to issue.

Estimates of the whole period differ between sources, and the difference is worth knowing about. The court guide gives four to six weeks for its own part. Two Queensland firms, RCB Law and BCG Law, each put a grant at about ten weeks. Wallace Lawyers says a grant generally takes several months, and that transmission overall generally takes one to three months. RCB Law tells buyers to allow for a total delay of three to four months. None of these is a promise, and they measure slightly different things, but they agree on the point that matters: a standard settlement period is unlikely to be long enough.

Joint tenants and tenants in common

The exception to all of the above is a property owned by two or more people as joint tenants. On the death of one, the survivor owns the whole by survivorship, whatever the will says. The Queensland Revenue Office describes it in the same terms: ownership passes automatically to the surviving joint tenant or tenants under the rules of survivorship.

Nothing passes through the estate, so no grant is needed for the land. The survivor lodges a Form 4, a request to record death, with the official death certificate. The form is signed by the applicant or their solicitor. Wallace Lawyers puts the registry's part at a week or two once the certificate is in hand, and RCB Law describes the usual delay in a sale as a matter of weeks. The surviving owner is already a party to the contract and completes it alone.

Tenants in common are different. Each holds a separate share, and the share of the one who has died goes into their estate. The surviving co-owner can still sign for their own share but cannot give the buyer the whole property; the deceased owner's share needs a personal representative, with the transmission described above.

For two buyers, the same words on the contract describe how they intend to hold the property once it is theirs. They are not yet on the register, so there is no Form 4 to lodge. The surviving buyer remains a party to the contract. What becomes of the other buyer's part of the bargain, and who must sign with the survivor, depends on the contract and on the estate, and is a question for legal advice in each case.

When it is the buyer who has died

The seller's position is the mirror image. The contract stands, and it is now a contract with the buyer's estate. Lockett McCullough Lawyers notes that a seller who needs to enforce it deals with the buyer's legal personal representative, and that once the sale completes the property forms part of the estate and vests in the personal representative.

Money is usually the harder problem. A loan approval is given to a particular borrower, on that person's income. If the borrower has died, the estate cannot draw on it. Lockett McCullough puts it gently: the representative may struggle to persuade the financier to complete, while a purchase that was to be paid in cash should be able to settle without that difficulty. Where there were two borrowers, the survivor's lender will need to be told, and whether the approval can stand on one income is a decision for the lender. RCB Law adds, for any long delay, that finance approvals commonly last about 90 days and may need a fresh assessment if settlement moves beyond that.

If the finance condition in the contract has not yet been satisfied or waived when the buyer dies, the condition still operates in its ordinary way, and so do the building and pest condition and any cooling-off right that has not expired. Those existing rights, and not the death itself, are what may bring such a contract to an end.

A home bought by one person for their own use may be of no use to the beneficiaries. The estate is still bound, though the two sides remain free to agree to end the contract on terms. BCG Law sets out what the seller may do if no agreement is reached and the estate does not settle: treat the buyer as in breach and keep the deposit, then either terminate and resell, claiming any loss on resale from the estate, or ask a court to order that the contract be performed.

Time, extensions and the deposit

Death does not stop the clock. Wallace Lawyers is direct about it: the death of a party does not extend any date in the contract, including the settlement date, and an extension will most likely be needed.

Under clause 6.1 of the First Edition, time is of the essence. Clause 6.2 lets either party extend settlement by giving a notice, at any time up to 4pm on the settlement date, to a new date no later than five business days after the settlement date originally scheduled. That is little help against a process measured in weeks or months. Any longer extension has to be agreed between the parties.

Nothing obliges the other party to agree. If an extension is refused and the estate or the surviving owner cannot settle on the due date, Wallace Lawyers says the buyer gains the right to terminate, and BCG Law describes the same right in reverse for a seller facing a buyer's estate. Lockett McCullough observes that extensions can usually be agreed. A buyer whose own lease is ending, or whose own sale depends on this purchase, has real costs to weigh in deciding.

The deposit stays where it is, in the trust account of the agent or solicitor named as deposit holder. Clause 2.3(1) says who is entitled to it at the end: the seller if the contract settles, the buyer if the contract is terminated without the buyer's default, and the seller if it is terminated because of the buyer's default. A death does not change that sequence: the deposit follows whatever finally happens to the contract.

A death changes who signs and how long it takes. It does not, of itself, change what was agreed.

When a party loses capacity

Loss of capacity raises the same question, who can sign, but the answers come from different laws: the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000.

If the person made an enduring power of attorney for financial matters while they were well, their attorney can complete the sale or purchase for them. The Land Title Practice Manual explains the distinction that matters: a general power of attorney is revoked when the person who gave it loses capacity, while an enduring power is not, and keeps operating. Some enduring powers are written to begin only when capacity is lost. For those, the manual says, a letter from a registered medical practitioner confirming the loss of capacity is deposited with the registration request.

Before an attorney can sign a transfer, the power has to be on the register. Under section 132 of the Land Title Act 1994, a document signed by an attorney may be registered only if the power of attorney is itself registered. Titles Queensland's guide says this is done with a Form 16, lodged with the original power or a certified copy, and that a power covering only personal or health matters cannot be recorded.

If there is no enduring power of attorney, nobody has automatic authority, not even a spouse. The Queensland Civil and Administrative Tribunal, known as QCAT, can appoint an administrator for financial matters under the Guardianship and Administration Act. Titles Queensland says the tribunal's order can then be noted on the person's title by a Form 14 general request, after which any document dealing with their interest must be signed in line with the order. A tribunal application takes time: QCAT says parties usually receive a notice of hearing two to four weeks before the hearing date. It can make an interim order lasting up to three months, but only where it is satisfied there is an immediate risk of harm to the adult's health, welfare or property.

Settlement, duty and the house in the meantime

The mechanics of settlement day do not change. The First Edition requires electronic settlement unless the parties have excluded it. Titles Queensland's list of lodgeable documents shows that a transmission with a grant on Form 5 is among those that must be lodged through an e-conveyancing platform, while an original will cannot be lodged electronically, so a Form 5A resting on a will goes to the registry with the paper document.

On transfer duty, the Queensland Revenue Office says liability typically arises when a contract is signed or becomes unconditional, and that the buyer usually pays. A sale completed by a seller's estate is still that sale: the buyer's duty is the same as it would have been. The Revenue Office's exemptions for death sit around that sale. Under section 124 of the Duties Act 2001, a transfer of property from an estate to a beneficiary is exempt when it follows the will or the intestacy rules, and under section 144 no duty is payable on a transfer that results from the death of a joint tenant. A transfer that departs from the will may be dutiable. The Revenue Office's published guidance on death deals with estates distributing property. It does not address a purchase completed by a buyer's estate, or one where the family would rather a beneficiary took the transfer in place of the estate, and those are questions to put to the estate's solicitor before any document is signed.

The house itself needs looking after while the paperwork catches up. Under clause 8.1 of the First Edition the property is at the buyer's risk from 5pm on the first business day after the contract date, and a long extension lengthens the time a buyer carries that risk on a home they cannot yet occupy. A seller's estate, for its part, still owns the property until settlement. A house left empty after a death, and an insurance policy in the name of someone who has died, are both matters to raise with the insurer early; what a policy requires differs from insurer to insurer.

Kooky, from Shaka

Kooky edits Queensland Estate and builds Shaka, the payment router he made for Queensland property professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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