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- office@hqf.com.au
- 2/82 Marine Parade, Coolangatta, 4225, QLD
- PO Box 327, Coolangatta
PROPERTY LAW
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When one of the owners of a jointly held property dies, what happens next depends entirely on how the two of you owned it. Joint tenancy and tenancy in common, the two forms of co-ownership in Queensland and New South Wales, produce completely different outcomes on death. One passes the property to the surviving owner automatically. The other sends the deceased’s share through their estate.
This is one of the most common questions we receive from families after a death, and the answer is often not what they expected. Here is how it works.
If you are unsure how you hold your property, check the title. The title document held by the relevant land registry, Titles Queensland or NSW Land Registry Services, will show either ‘joint tenants’ or ‘tenants in common’ (sometimes with percentages). If you cannot access the title, your solicitor or conveyancer can search it.
If you and the deceased held the property as joint tenants, the property passes to you automatically by the right of survivorship. You do not need probate or any court order for the property itself. You do not need to be named in the deceased’s will. The property is yours simply because the other owner has died.
The process to formalise this is straightforward: you register a Transmission Application (in Queensland) or a Notice of Death (in NSW) with the relevant land registry, supported by the death certificate. Your solicitor handles this for you.
Critically, the right of survivorship overrides the will. Even if the deceased’s will left their share of the property to someone else (a child, a sibling, a charity) that provision is ineffective. The property passes to you regardless.
Sarah and James own their home as joint tenants. James dies. His will leaves everything to his children from a previous relationship. Despite the will, the home passes automatically to Sarah. The children receive nothing from that property.
If you and the deceased held the property as tenants in common, the deceased’s share does not pass to you automatically. It forms part of their estate and passes according to their will — or, if there is no will, under the intestacy rules.
The surviving co-owner retains their own share. But the deceased’s share now belongs to whoever the will or intestacy rules direct — which may be a family member, a trust, or someone entirely outside your relationship with the deceased.
To deal with the property after a tenancy in common death, the estate’s executor (or administrator if there is no will) must obtain a Grant of Probate or Letters of Administration. Only then can the deceased’s share be transferred. Our estate administration team handles this process for executors and families.
Tom and his sister Kate own an investment property as tenants in common, Tom 60%, Kate 40%. Tom dies. His 60% forms part of his estate and passes to his beneficiaries under his will. Kate keeps her 40% but now has co-owners she may not have chosen.
This is more common than it should be. Couples who bought property together years ago sometimes discover, after a death, that they hold as tenants in common rather than joint tenants. The property does not pass automatically. The surviving spouse or partner must go through the estate administration process to obtain their share, or they may find themselves co-owning with the deceased’s children from another relationship.
The reverse also happens: co-owners who intended a tenancy in common arrangement discover they hold as joint tenants, meaning the deceased’s share does not pass under their will as they planned.
Both problems are preventable with a title check and (if necessary) a change of ownership structure before death. Severing a joint tenancy converts it to tenancy in common. Our property law team can check your current title and advise on any changes needed.
For families in the Coolangatta–Tweed corridor who hold properties in both states, the same principles apply in each jurisdiction, but the procedural steps differ.
If the deceased owned properties in both states, both registries need separate applications. And if probate was obtained in one state, it may need to be resealed in the other.
The type of co-ownership on your property title has real consequences for your estate plan and for the people who survive you. Checking your title now and ensuring your ownership structure reflects what you actually intend, takes an hour and costs very little. Finding out after a death that the structure was wrong can cost considerably more.
Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice. Readers should seek legal advice about their specific circumstances.
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Yes. Severing a joint tenancy converts it to tenancy in common, so that your share then passes through your estate under your will rather than automatically to the surviving owner. This is a formal process requiring lodgement with the relevant land registry — it is not simply an agreement between the parties. Stamp duty implications should be considered before proceeding.
This is one of the risks of tenancy in common that people do not plan for. If the deceased’s share passes to a beneficiary who will not agree to sell, you may need to apply to the court for a partition order — an order directing the sale or physical division of the property. Partition proceedings are costly and stressful. The best time to address this risk is at the time of purchase, with a co-ownership agreement specifying what happens on death or disagreement.
Yes. On the death of a joint tenant, there is no CGT event — the surviving owner simply absorbs the deceased’s share. For tenants in common, the deceased’s share passes through the estate, which involves a separate CGT analysis depending on when the property was acquired and whether the main residence exemption applies. Obtain tax advice specific to your circumstances.