Selling a Queensland home as an executor or under a power of attorney

In this article

Written by

Kooky

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

About Kooky and Shaka →

Most sales begin with an owner who decides to sell and signs the papers. A good number begin differently. The owner has died and the house belongs to an estate. Or the owner is alive but overseas, in hospital or no longer able to manage their own affairs, and a son, daughter or trusted friend has been asked to act. In both cases the person standing in the agent's office is not the person named on the title, and every other party to the sale, from the agent to the buyer's lender to the titles registry, will want to know by what authority they are there.

Queensland answers that question with two separate mechanisms. An estate sells through its personal representative, whose name is put on the title by a process called transmission. A living owner's representative sells under a power of attorney that has been registered with Titles Queensland. This guide explains each: which forms are used, what evidence the registry asks for, when a grant of probate is needed and when it may not be, what an attorney must and must not do, and how the ordinary steps of a sale fit around the paperwork. It describes the general rules as the agencies publish them. Estates and attorneyships vary enormously, and the documents in a particular case decide what can be done.

Titles Queensland Land Title Practice Manual and registry guides; Queensland Revenue Office guidance on deceased estates.

Two authorities that are easy to confuse

The first thing to settle is which of the two situations applies, because they never overlap.

A power of attorney is a living person's instruction. The Queensland Government's guidance is direct on the point: a general power of attorney ceases when the person who made it dies. The same is true of an enduring power. An attorney who was managing a parent's affairs last month has no authority to sell the parent's house this month if the parent has died in between. From the moment of death, authority passes to the estate.

An executor's authority runs the other way. It comes from the will and begins at death. A person named as executor in a living relative's will has no power over that relative's property at all.

It is common for the same person to hold both roles, one after the other: attorney during a parent's last years and executor afterwards. The roles use different documents, are registered differently and carry different duties. A sale that straddles a death, with an appointment signed by an attorney and a contract not yet made, has to be started again on the estate's authority.

When the owner has died: who can sell

The person who administers an estate is called the personal representative. Where there is a will that names an executor, it is the executor. Where there is no will, or no executor able to act, it is an administrator, usually a close relative entitled under the rules of intestacy.

Titles Queensland's Land Title Practice Manual sets out how the law treats the land. Under the Succession Act 1981, a deceased person's property passes to the personal representative, who holds it for the purposes of administering the estate before it reaches the beneficiaries. The Land Title Act 1994 then provides for the personal representative to be registered as owner in that capacity. The register does not show the executor as owning the home for their own benefit. It shows them "as personal representative".

That registration is what allows a sale to be completed. A buyer takes a transfer signed by the person the register shows as owner. Until the register shows the personal representative, there is nobody alive whose signature the registry will accept on a transfer of the lot.

Whether the estate should sell at all is a prior question, and it belongs to the will and to the beneficiaries. A will may leave the house to a named person, in which case that person, not the market, is where it is going. It may direct that the house be sold and the proceeds divided. It may say nothing specific, leaving the executor to decide how to turn the estate into shares. The executor's first reading of the will is therefore the first step in any estate sale.

Joint tenants: when the home is not in the estate

Before any of that, the title has to be read, because a home held by joint tenants does not pass through the estate.

Titles Queensland's guide on the death of a joint tenant explains that the deceased's interest passes immediately to the surviving joint tenant or tenants by survivorship, whatever the will says. A couple who own their home as joint tenants are the usual case: when one dies, the other owns the whole.

The survivor updates the title by lodging a Form 4, a request to record death, with a certified copy of the death certificate. The form has to be completed, signed and witnessed by a qualified person. No grant of probate is involved and the executor has no role. Once the death is recorded, the survivor is the sole registered owner and sells, if they wish to, as any owner does.

Co-owners who hold as tenants in common are in a different position. Each owns a distinct share, and a deceased co-owner's share does fall into their estate. A current title search shows which form of ownership applies, and Titles Queensland's guidance on recording a death starts from that search for this reason.

Is a grant of probate needed?

Probate is the Supreme Court's confirmation that a will is valid and that the executor is entitled to act. Where there is no will, the equivalent is a grant of letters of administration. Many people assume a grant is always required to sell a house. In Queensland that is not quite so.

The Queensland Law Handbook explains that the need for a grant is determined largely by the nature of the assets, not by the size of the estate alone. Some assets pass without one, jointly held property among them. Where a grant is sought, the process it describes is formal: a notice of intention to apply is advertised and served on the Public Trustee, and the application is filed with the Supreme Court registry together with the original will and the death certificate. The registry checks that the formalities have been observed before the grant issues.

For land, Titles Queensland offers two routes, and its practice manual is explicit that it is not essential in every case to obtain a grant.

The first route, Form 5, is for a personal representative who holds a Queensland grant or an equivalent the manual recognises. The grant is lodged as evidence, and the registry relies on the court's decision.

The second, Form 5A, is for an applicant without a grant. Where there is a will, it can be used by a person who is, or would be, entitled to probate or to administration with the will attached. Where there is no will, the manual sets three conditions: the registrar must be satisfied the applicant would succeed in obtaining letters of administration, the value of the estate must not exceed $300,000, and no Queensland letters of administration can have been granted within six months of the death. Under this route the registrar examines the original will directly, and may ask for a further statutory declaration if, for instance, the will is undated.

There is a third form. Form 6 lets a beneficiary who has been left the land apply to be registered directly, with the personal representative's written consent. It suits a house that is staying in the family. It is not the route for a sale by the estate.

The fact that the registry can act without a grant does not mean everyone else will. A bank holding the deceased's accounts, a share registry or a buyer's solicitor may each ask for one on their own terms. Whether to apply is a judgment about the whole estate, and it is ordinarily made with the estate's solicitor.

Transmission: putting the estate on the title

The lodgement itself is called a transmission application. Its effect is to replace the deceased's name on the register with the personal representative's, in that capacity.

Since 20 February 2023, Titles Queensland has required certain instruments to be lodged electronically where a lawyer or financial institution is acting. A Form 5 transmission is on the mandated list, alongside transfers and releases of mortgage. Individuals acting without a representative are among the stated exemptions and may lodge on paper. The registry's guides give a service time of three to five working days for most correctly prepared dealings.

Once the transmission is registered, the practice manual notes, a transfer can follow. For a sale, that transfer is to the buyer. The two can be prepared so that the estate's name goes onto the title shortly before, or together with, the buyer's.

The order of events in an estate sale therefore looks like this.

The third and fourth steps can run in either order or side by side. What cannot be skipped is the fourth before the transfer to a buyer is registered.

Signing the appointment, the disclosure and the contract

An estate sale uses the same documents as any other. The difference is who signs and what they can honestly say.

The agent's appointment is signed by the personal representative. Where two or more executors are named and acting, each is a party. From 1 July 2026 agents must also verify the identity of the people they act for under federal anti-money laundering law, and an agent acting for an estate will ask for evidence of the representative's authority as well as their identity: the will, the death certificate and, where there is one, the grant.

The seller disclosure statement is the harder document. Since 1 August 2025 a Queensland seller has had to give a buyer the statement and its prescribed certificates before the buyer signs. The Queensland Government's published list of exceptions covers cases such as a sale to a government body, a sale between related parties, a sale above $10 million where the buyer waives disclosure and a council selling for unpaid rates. Nothing on that list turns on the seller being an estate. An executor completes the statement like any other seller.

The difficulty is knowledge. An executor may never have lived in the house. They may not know about an unapproved deck, a neighbour's tree dispute or a notice from the council. Much of the statement rests on searches and certificates, which can be obtained regardless of who is asking. Where a question depends on what the seller knows, an executor can only answer from the documents and from reasonable enquiries, and this is a point on which the estate's solicitor is normally asked to advise before the statement is signed.

The practical requirements of a sale apply to an estate without discount. The smoke alarm standard has to be met before transfer. A pool needs a certificate or the prescribed notice. A house that has stood empty for months may need work to meet either, and the executor is the person who must arrange it.

Holding the home during administration

Between the death and the settlement, the estate owns a house and bears its costs. Two tax rules are worth knowing about, though both belong to a tax adviser and are noted here only as context.

The Queensland Revenue Office treats the deceased as still the owner of the land until administration is complete, with the estate's administrator responsible for any land tax in the meantime. If the home was exempt as the deceased's residence, the office's guidance says the exemption may continue for up to one year after the date of death, provided the property is not rented out or transferred contrary to the will. The guidance also asks administrators to tell the office if the death has not been recorded on the title, or the transmission registered, by the 30 June following the death.

The Australian Taxation Office's guidance on inherited dwellings refers to a two-year period: where the conditions for the exemption are met, a home disposed of under a contract that settles within two years of the death can be free of capital gains tax, and the period can be extended where a delay is caused by exceptional circumstances outside the seller's control. The same treatment applies to the trustee of a deceased estate. The conditions are detailed and depend on how the deceased used the home.

Neither rule sets a deadline for selling. Both mean the calendar matters, and an executor who lets a house sit for a long time should know which dates are passing.

When the owner is alive: general and enduring powers

The second situation is the owner who is living and cannot, or prefers not to, sign for themselves.

Queensland has two kinds of power of attorney. A general power is for a person who has capacity and wants someone to act for a time or a purpose: an owner working overseas during a sale is the typical example. The Queensland Government's guidance states that a general power ends if the person who gave it loses the capacity to make decisions. It is a convenience, not a safeguard.

An enduring power is designed to continue when capacity is lost. It can cover financial matters, personal matters or both, and only a power covering financial matters is relevant to a sale. The person making it, known as the principal, must have capacity at the time. The document has to be signed in front of an eligible witness, such as a justice of the peace, a commissioner for declarations, a lawyer or a notary public, who certifies that the principal understood it. The attorney must also sign to accept the appointment before acting.

When the attorney's power over financial matters begins depends on the document. The government's guidance says it starts at the time or in the circumstances the document specifies, and if it specifies nothing, from the day it is made. A power that begins only when the principal loses capacity will need evidence of that before a sale, usually medical.

Registering the power with Titles Queensland

A power of attorney that is perfectly valid may still be useless for a sale until one further step is taken. Both the government's guidance and Titles Queensland say the same thing: before an attorney can deal with land in Queensland, the power must be registered in the titles registry.

Registration is requested on Form 16, lodged with the original power of attorney or a certified copy that meets the requirements of the Powers of Attorney Act 1998. The form does not need to be witnessed, and it can be signed by the principal or by one of the attorneys. A power that does not authorise the attorney to deal with financial matters cannot be registered.

Once it is registered, the dealing number on the document becomes the registered power of attorney number. That number is what later appears beside the attorney's signature on the transfer, and it is what the buyer's solicitor will ask for. As with other dealings, the registry quotes three to five working days for a correctly prepared request.

The sensible time to register is before the home is listed. A power drawn up years ago and kept in a drawer has often never been registered, because nobody needed it for land until now. Finding that out a week before settlement turns a formality into a delay.

The attorney's duties when a home is sold

An attorney has authority to sell. Whether a sale is a proper use of that authority is a separate matter, and the law is strict about it.

The Queensland Law Handbook summarises the duties in the Powers of Attorney Act 1998. An attorney must act honestly and with reasonable diligence to protect the principal's interests, follow the terms of the document, keep the principal's money and property separate from their own, and, where there are several attorneys, act in the way the document directs: jointly, individually or by majority.

One rule bears especially on property. The Act restricts what it calls conflict transactions, where the attorney's duty to the principal may conflict with the interests of the attorney, or of the attorney's relatives, business associates or close friends. Such a transaction is permitted only if the principal authorised it or a court or tribunal approves it. An attorney who sells a parent's house to themselves, to a sibling or to a friend, or at a price that favours anyone but the parent, is in exactly the territory the rule covers.

The consequences are set out in the government's guidance for attorneys. The Public Guardian may investigate. The Queensland Civil and Administrative Tribunal may remove an attorney. A court or the tribunal may order compensation for loss or require an attorney to account for any profit, and failing to act honestly can be a criminal matter.

In practice the duties shape a sale in ordinary ways. The proceeds go into an account in the principal's name. The reasons for selling, such as funding aged care, are worth recording at the time. A sale on the open market through an agent, at a price supported by evidence, is far easier to justify later than a private arrangement.

What agents, buyers and lenders will ask for

A representative seller should expect to prove their standing more than once, to people who have no reason to take it on trust.

The agent will want to see the authority before accepting an appointment, since an appointment signed by someone without power to give it protects nobody. The buyer's solicitor will search the title and compare it with the name on the contract. If the register still shows a deceased owner, or shows a living owner while an attorney has signed, they will ask how and when that will be put right, and the contract may be drafted to allow for it. If the home is mortgaged, the lender will need to be told of the death or of the attorney's role before it will release its security.

Each of these enquiries is answered by the same short list of documents: the will and death certificate with any grant for an estate, or the registered power of attorney and its number for a living owner, together with a current title search. Having them in hand when the home is listed is the difference between a sale that proceeds like any other and one that pauses at every step.

The buyer of an estate or attorney sale is asked to rely on a signature that is not the owner's. Everything the registry requires exists to make that signature safe to rely on.

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.

About Kooky and Shaka →