If your spouse or partner has died, and they owned Real Property, you may need to transfer the property to your name or in accordance with their Will or the doctrine of survivorship.
Likewise, if your parents have died you might be looking to transfer the property into your name as a beneficiary.
When dealing with property transfers after a person has died the manner of holding and the rights of the transferee plays an important role. This article looks to shed some light on how Real Property can be transferred from the deceased individual and how the different manners of holding change how the transfers must be completed.
Starting with manner of holding, there are two main types:
Joint Tenants or Joint Proprietors
Properties held as a joint tenant (also known as joint proprietor in Victoria) and are generally not a part of a person's deceased estate. When someone dies and holds property as joint tenant the doctrine of survivorship applies and their share is passed onto the surviving proprietor.
Most married and de facto couples choose this method of owning property.
The survivor obtains the deceased's share in the property solely via a survivorship application. All changes to property titles must be done by a lawyer or a conveyancer. A survivorship application is a fairly simple process and can be done relatively quickly. There are a few supporting documents that are needed to prepare the survivorship application and once submitted the title details are amended.
Tenants in Common
The main difference between joint tenants and tenants in common, is that the deceased owns their share separately from the other proprietors. This means that properties held as tenants in common need to be transferred according to the deceased's Will and form part of the estate. The executor is responsible for managing the process and will typically engage a lawyer to help obtain probate and administer the estate.
Once probate is granted, the executor will have the necessary authority to transfer the property in accordance with the terms of the Will. Generally, the property is either sold and the proceeds transferred to the beneficiaries, or in more rare cases, the property is transferred as it is to the beneficiaries of the Will.
Trust structures
Properties held in a Trust structure with the deceased person as trustee may need to be changed as well. The property held in the Trust will generally need to be transferred to the new trustee and this process must be dealt with appropriately in accordance with the terms of the Trust Deed.
The Will of the deceased trustee may have some relevance to the Trust, but the terms of the Trust Deed prevail. If you have an interest in a trust, you should ensure that you have obtained estate planning advice to ensure that your Will is consistent with the terms of the Trust Deed. Proper succession planning will ensure that these roles and issues are pre-empted so that the transfer of wealth is simple.
SMSF Properties
Many people hold property in their SMSF. Transferring SMSF properties is subject to the terms of a valid Binding Death Nomination. Transferring a property from a SMSF is a complicated progress as there may be refinancing requirements if there is a mortgage and bare trusts to deal with. Our probate and property lawyers will be able to help you transfer the property to beneficiaries of a valid Binding Death Nomination for a SMSF.
Other Assets to be transferred
Real estate is not the only thing that needs to be transferred after the death of a spouse or a partner. The process of administering an estate can take some time to work through.
There are bank accounts, investments and a range of other issues to finalise. Getting access to the records and getting them transferred can be a frustrating process for executors. Our probate lawyers help to ensure that the estate is distributed quickly and with all the proper considerations given.
If you have assets in different countries, you may need to have a Will that deals with those assets as not all countries will consider an Australian Will to be valid.
When dealing with investment properties and other assets there can be tax to be considered and we work with your Accountant to ensure that this is factored.
If you are an executor of beneficiary that needs help to transfer property as a part of a deceased estate contact one of our lawyers for advice today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
