What Happens to a Jointly Owned Property If One Owner Dies in Australia?

Joint tenancy is a type of ownership where two or more people have equal rights to the entire property. If one owner of a jointly owned property passes away, their share is automatically transferred to the surviving tenant or tenants.

An example of joint tenancy is when a married couple owns a house together. If one spouse dies, their share of the property automatically goes to the surviving partner or joint tenant.

Although this transfer is well established in the law, it is not entirely automatic. The surviving tenant still has to file a survivorship application and amend their Certificate of Title.

This article covers some essential concepts related to joint tenancy and outlines the requirements for transferring ownership.

Right of Survivorship: Tenants in Common vs Joint Tenants

When a property has multiple owners and one owner passes away, the transfer process depends on their co-ownership arrangement or right of survivorship.

There are two types of co-ownership arrangements.

Tenants in Common is an arrangement of 2 or more property owners with shares of ownership. So, consider it as if they own shares in a property. It can be 50/50, or one owner has 70% property ownership, while the other has 30%.

Under this arrangement, a tenant in common can often sell, mortgage, or lease their share of the property without the agreement of the other tenants (unless an agreement is there to the contrary).

If a tenant in common dies, their interest in the property becomes part of the deceased estate or is transferred to beneficiaries. A legal personal representative may also sell it. You can also pass it on under a will.

Joint Tenants is an arrangement of 2 or more property owners with a right of survivorship.

If a joint tenant dies, their interest in the property goes to the surviving joint tenant or tenants, not the deceased estate. Unlike tenants in common, you can’t usually pass it on under a will.

Both co-ownership arrangements have advantages and disadvantages. It is best to consult a lawyer when purchasing a property to determine which arrangement works best for you.

Transfer of Property to Surviving Joint Tenant

The surviving joint-tenant must go through a survivorship application to claim ownership.

The good news is that the process is relatively inexpensive, with fees depending on the different states and territories (often costing a few thousand dollars). Also, it only needs four legislative requirements:

1. application by the surviving joint tenant
2. Certificate of Title
3. completed and signed statutory declaration by the survivorship proprietor
4. applicant’s proof of identity

For the state of Victoria, you can check the application guide, forms, and fees here. However, additional fees may be charged by the bank if there is a mortgage on the title.

Get Assistance from a Property Lawyer

The transfer of property ownership from a deceased joint tenant is relatively quick and straightforward.

However, dealing with the emotional toll of losing a loved one can be challenging. A qualified property lawyer helping you with the legal requirements may ease this process.

The TNS Lawyers team is more than capable and willing to guide you. You may contact us at +61 3 9052 3214 or email info@tnslawyers.com.au.