Deceased Estate Property

If the deceased left real estate (house and/or land) in Victoria, you need to check how the property was held and owned by them. There are a few ways property can be held by a person in Victoria: 

1. As a sole proprietor - the deceased was the only owner of the property, it is registered in their sole name. 
2. As a tenant in common - the deceased held a distinct share of the property in their sole name, with one or more other people registered on the title. 
3. As a joint proprietor - the deceased held property jointly with another person, and they are both registered on the title. 
4. As a trustee - this will not be recorded on the certificate of title, but you will need to check the contract of sale and transfer documents to confirm whether the deceased held the property as trustee of a trust. 

If options 1 or 2 apply, then you will require a Grant of Probate or Letters of Administration to deal with the deceased's right in the property. 

If option 3 applies, the other joint proprietor automatically has the right of ownership of the deceased's share of the property. This is legally effected by an Application by Surviving Proprietor, which changes the details on the certificate of title, and notifies the local council and water authority of the passing of one proprietor. 

We recommend you seek legal advice regarding deceased estate property so you know where you stand and what your obligations are. 

Once you have obtained the Grant of Probate or Letters of Administration, you can proceed with the Application by Legal Personal Representative which places the Executor or Administrator of the estate on the certificate of title, but does not convey ownership. The Transmission allows for the Executor/Administrator to control the property as part of the estate administration, and sell the property for example, or transfer the property to the beneficiaries entitled. 

Once you have completed the Transmission, you can transfer the property to the beneficiaries entitled under the Will or the laws of intestacy. 

If the transfer is under the terms of the Will or laws of intestacy, then there is no stamp duty payable. The transfer will place the property in the name of the beneficiary in their own right. 

In Queensland, there is no requirement to obtain a Grant of Representation to deal with real estate left by the deceased. 

If the deceased left real estate in Queensland, and you have not obtained a Grant of Representation, you can proceed with a Transmission to the Executor of the Will so long as the following conditions are met:

1. The Will is a valid legal Will in accordance with the requirements in Queensland; 
2. The deceased left no other estate in Queensland (the only asset that is left in their name is the real estate); and 
3. The original Will is to be deposited with the Queensland Titles Office. 

If you would like assistance with a Transmission in Queensland, or advice on whether you need a Grant of Probate in Queensland, please contact our office for a free consultation.