Deceased Estate
Property Transfer
Helping Executors and Families Transfer Property With Compassion
Guidance and Support in Deceased Estate Transfer
When a loved one passes, the grief and pain you experience are often added to by unfortunately timed, yet necessary, practical responsibilities. One of the most common and significant of these is addressing the deceased’s property … their private residence, the family home, or an investment property.
Whether you’re responsible for the deceased estate property transfer itself as the Executor, or simply named in the Will as a beneficiary, you may feel understandably overwhelmed, confused, or unsure about what happens next.
At Falzon Legal, we’re here to support and guide you through the entire process, whatever your circumstances. Our understanding and knowledgeable solicitors bring clarity to complex legal matters while providing ceaseless compassion, ensuring a smooth yet considerate property transition.
What Happens to Property After Someone Passes Away?
When someone passes, their property often forms a significant part of their overall estate. However, the manner in which the property is managed and ultimately distributed usually depends on how it was owned, and whether the deceased created a formal and valid Will before breathing their last.
Deceased Property Transfer … Wills and Ownership Types
Sole Ownership of Property
If the departed held a property in just their own name, it becomes part of their estate in its entirety. It must then be transferred to the beneficiary named in the Will … if one exists. If there is no Last Will and Testament, then the rules of intestacy apply.
Joint Tenancy Ownership of Property
This is when two (or possibly more) people share ownership of the property, each having an equal part. Typically, it happens between married couples or people in de facto relationships and can involve a mortgage. If one co-owner passes, their share of the property goes directly to the surviving owner(s) … the right of survivorship.
Therefore, the bricks and mortar asset doesn’t form part of the general estate, and no one else can claim the share. Even if the deceased’s Will expresses a wish for someone else to receive it, joint ownership takes legal priority. And, if there is no Will, intestacy rules do not apply.
Tenants in Common Ownership of Property
In this situation, two or more people own the property with a defined shareholding. This could be 70/30, 60/40, or even 50/50. However, in this structure, when one of the owners passes, their share becomes part of the overall estate.
This means that it’s passed to the beneficiary stated in the Will, or distributed under intestacy if no Will exists.
Trust Ownership of Property
If a property is held in a trust, it’s legally owned by the Trustee, but not for their own benefit. Therefore, if the Trustee passes on, the property in the trust doesn’t become part of their personal estate.
Instead, the control of the trust, including decision-making over its property, is passed to a successor Trustee or Appointor, as indicated by the trust deed.
SMSF Ownership of Property
When the deceased has property within their SMSF, it’s important to remember they did not own the asset … the fund does. So, upon their death, the property doesn’t automatically form part of their estate. Instead, it’s managed under the fund’s governing rules and superannuation law.
Typically, a Binding Death Benefit Nomination (BDBN) establishes who receives the deceased’s entitlements. This could be a spouse, partner, or dependent. However, it could also be their estate, but this doesn’t happen by default.
Transferring Property From a Deceased Estate to a Beneficiary
In many circumstances, the Testator (the person who wrote the Will) clearly indicates in their Will who they wish to receive their property upon their passing. While individual circumstances vary, it usually follows this process:
Obtaining a Grant of Probate or Letters of Administration
If a Will exists, the named Executor gets authority from the Supreme Court to distribute the property by obtaining a Grant of Probate.
Lodging a Transmission Application
Once Probate (or Letters of Administration) have been obtained, the Executor files a transmission application with the NSW Land Registry Services (NSW LRS). This transfers the title into the Executor’s or Administrator’s name as an interim measure, before it’s passed onto the beneficiary.
Transfer of the Property to the Beneficiary
In most circumstances, the Executor must file with the NSW LRS a Transfer form (Form 01T), together with a Notice of Sale (NOS) … even if no money has changed hands. This transfers the property title from the Executor to the beneficiary.
Stamp Duty Requirement
Generally speaking, in NSW, beneficiaries receiving a property through a Will or intestacy rules have to pay a set Stamp Duty of $100. However, normal transfer duty rates could apply under specific circumstances … such as one beneficiary paying another for their share of the property.
Let Falzon Legal Guide You Expertly Through Your Role As Executor
Property Transfer and Changing the Land Title Due to Death
When a loved one departs forever, the property transfer isn’t complete without informing the NSW Land Registry Services. This reassigns the legal ownership of the asset … whether that’s to the surviving joint tenant, the Executor of the estate, or to a stated beneficiary.
The transfer of the house title after death is a legal requirement. Not only does it change the owner, it also confirms their rights, permits them to sell it in the future, allows them to refinance, and also pursue other dealings with the property itself.
For joint tenancies, this may be as simple as lodging a Notice of Death with NSW LRS.
But, for properties that are solely owned or as tenants in common, the process is more difficult, usually needing a Grant of Probate/Letters of Administration, and a Transmission Application and formal Transfer documents.
As the transfer of a real estate title after death can involve different fields of law (Wills and Estate, ownership structures, and conveyancing), it’s far from straightforward.
With Falzon Legal by your side for guidance, support, and knowledge, you’re guaranteed a smooth transition at this emotional time.
Intestacy … Property Transfer After Death Without a Will
Sometimes, a person may pass without leaving a Will, or has one that’s considered to be informal, a situation in law called dying intestate. When this happens, it means that there are no obvious wishes given by the deceased regarding the transfer of their property to a beneficiary, nor is there an Executor to manage these transfers.
In these circumstances, the distribution of their possessions is determined by the rules of intestacy given in the Succession Act 2006 (NSW). Generally speaking, property is distributed to the next of kin, following a kind of ranking structure (going in the order spouse/partner, children, parents, siblings, etc).
The Transfer Process Without a Will:
- Apply for Letters of Administration – usually, a close family member applies to the Supreme Court of NSW, to obtain the authority to act as the Administrator, as there is no Executor or Probate.
- Lodge a Transmission Application – placing the property title into the Administrator’s name as an interim measure before it is finally transferred.
- Transfer the Property – the Administrator transfers the property to the beneficiary according to the NSW laws of intestacy.
This entire process is complex, can lead to property disputes or settlements, and demands a thorough understanding of intestacy law.
Falzon Legal will be by your side. We can help in all no-Will property matters, from Letters of Administration to the final property transfer. It’s our relentless aim to give you a stress-free experience while you understandably deal with your grief.
The Complex Tax Position of Deceased Estate Property Transfer
In addition to the emotional turmoil and procedural requirements involved in transferring a land title and property after death … there are also a multitude of tax considerations.
Stamp Duty (Transfer Duty)
As mentioned above, in NSW, a concessional stamp duty of $100 applies when transferring property as outlined in a Will or through intestacy. Furthermore, for Wills drafted after 31st December 2019, Surcharge Purchaser Duty is due for property transferred to foreign persons.
Capital Gains Tax (CGT)
Although there’s no inheritance tax in Australia, there could be a CGT liability … if assets (shares, property, businesses, etc.) are subsequently sold by the beneficiary. The rules are very complicated, affected by matters like when the deceased obtained the asset and whether the property was a primary residence or investment.
Land Tax (NSW)
Generally speaking, transferred property is exempt from Land Tax, if it was the primary residence of the deceased. However, this exemption can be lifted after 12 months have passed, and also dependent on how the property is then used by the beneficiary.
Australian Tax law is seriously complex and constantly changing. At Falzon Legal, we provide specific deceased property transfer advice tailored to your unique position … ensuring tax optimum efficiencies.
Existing Mortgages in Property Transfers
Often, a loved one who is no longer with you leaves behind a property that has an outstanding mortgage. This is another matter that needs careful and considerate attention in the transfer process. The mortgage may be addressed through:
- Property sale – by selling the property, the mortgage can be satisfied, removing the liability from the estate.
- Existing estate funds – the Executor/Administrator may use estate funds (cash, investments, etc) to address the remaining mortgage balance.
- Asset sale – other assets could be sold to clear the mortgage.
- Mortgage assignment – the beneficiary could take over the mortgage, subject to the approval of the lender and the new mortgagee’s financial position.
- Life insurance – if the deceased had a life insurance policy for the mortgage, or a suitable general policy, the funds could be used to directly clear the debt.
When coming to terms with loss, your mind shouldn’t be concerned with unsatisfied mortgages and loans. Falzon Legal eases your load, guiding you gently through your obligations, assisting in contacting lenders, and helping protect the estate throughout this difficult time.
Managing a Property Sale as the Executor
Not all property is transferred directly to a beneficiary, often, it’s sold. And, if you’re the Executor of the Will, this responsibility falls onto your shoulders.
This usually occurs when:
- The Testator stated that in their Will, the property must be sold, or
- Monies are required to satisfy the recently passed’s debts and liabilities, or
- To gather funds to share amongst multiple beneficiaries, where there is an equalisation clause.
Typical Responsibilities of the Executor in Selling Property
- Getting a Grant of Probate – this declares a Will as valid, and gives the Executor the power to manage and distribute the estate, including property.
- Transferring title to the Executor – you lodge a Transmission Application with the NSW LRS to put the property temporarily in your name, allowing you to sell or transfer it.
- Prepare the property for sale – such as ensuring the property is secure, getting valuations, and clearing or distributing contents.
- Engaging a real estate agent – to market and sell the property.
- Managing the sale process – in your authority as Executor, you accept the offers and sign for the sale.
Selling a property as the Executor carries significant responsibilities. Falzon Legal can guide you patiently through the entire process … from contracts and legal disclosures, to collaborating with real estate agents and conveyancers.
You Don’t Have To Navigate a Property Sale Alone
How We Help Families Manage the Transfer Process With Clarity and Calm
In the emotionally tender time following a recent loss, the legalities and complexities of property transfers are the last thing on your mind. This difficult period is a time for grief and reflection, not one for paperwork and court applications.
But, despite these deep feelings, addressing legal responsibilities promptly is essential … to both follow your loved one’s wishes and shield against future complications for you or your family.
At Falzon Legal, we walk caringly beside you, providing not just legal expertise, but also genuine warmth, comfort, and understanding to ease your burden.
We see you as a person, not as yet another case. Our mission is to gently guide you through each and every step, ensuring your loved one’s legacy is followed and their property transfers and other matters are resolved … with the minimum of stress and worry for you.
Our Clear and Compassionate Process
Showing You a Clear Path
Whether you’re an Executor nervously finding your way, or a family member wondering what happens next, we are here for you. Delivering concise, sympathetic, practical advice so you are constantly informed.
Removing Your Burdens
From applying for Letters of Administration, all the way to the change of title with NSW Land Registry Services, we can take care of every transfer detail on your behalf. Falzon Legal handles the paperwork and addresses any legal intricacies.
Sensitive Dispute Resolution
We know that, sadly, property disputes and contests can arise within families. Should this occur, our patient and experienced team can approach the matter with sensitivity and understanding … working to find common ground and resolutions.
Proactive Solutions
Wherever possible, we try to anticipate potential issues or challenges related to property transfers. This means you aren’t given unwelcome surprises to worry you at an already difficult time.
Compassionate Communication
Falzon Legal fully grasps the emotional strain you’re experiencing. That’s why we always talk to you with compassion and empathy, with reassuring support when you need it most.
Let us be your comforting presence and reliable legal guide during the most difficult of times. Our genuine goal is to ensure that property transfer matters are completed accurately and calmly, with dignity, and always honouring your loved one’s wishes.
Gain Peace of Mind, Experience, and Understanding
A Peaceful Way to Close a Chapter on Your Loved One … With Falzon Legal
Losing a loved one is never easy … and the requirement of having to navigate the legal and administrative property transfer process seems remarkably unfair at this challenging time. At Falzon Legal, we understand, that’s why we are here to guide and walk with you.
Whether you’re a first-time Executor, a heartbroken spouse, a prospective Administrator, or a child managing the estate of a parent, we can help. With clarity, patience, and genuine care, we can address anything from the Land Registry to property taxation, outstanding mortgages to disputes.
Allow us to deliver a deserving legacy for your loved one, by making the property transfer process as smooth and stress-free as possible.
Deceased Property Transfer FAQs
What Is a Deceased Transfer?
This is the legal process of moving the ownership of a property after someone has died. It means that the beneficiary then has the legal title to the property, which can then be used or sold.
Do You Need Probate To Transfer Property in NSW?
Not in every circumstance. If the property was held as a Joint Tenancy, the deceased person’s share automatically goes to the surviving owner. Often, this only needs a Notice of Death to be given to the Land Registry.
However, when a property was solely owned or held as Tenants in Common, Probate (or Letters of Administration without a Will) is typically needed.
What Happens to Property When Someone Dies Without a Will in NSW?
If someone passes without having a valid Will, this is called dying intestate. Any property is then transferred under the rules of intestacy … which usually gives ownership to the next of kin.
Is there Inheritance Tax on Deceased Property Transfer?
No, there is no inheritance tax in Australia. But, concessional Stamp Duty and potential Capital Gains Tax (CGT), if the property is subsequently sold, could be payable.
Can Falzon Legal Give Deceased Estate and Probate Property Advice?
Yes! At Falzon Legal, we provide detailed and understanding deceased estate and Probate advice. We can assist with Probate (or Letters of Administration where there is no Will) and provide guidance on the final transfer of the property.