Unlike where assets, such as land, are held jointly or as “joint tenants”, where assets is held as tenants in common, that asset must be distributed in accordance with the deceased owner’s Will or where there is no will, the laws of intestacy.

In the joint tenancy situation, on the death of one joint tenant, that deceased person’s title or interest in the property does not form part of the deceased person’s estate and rather, it automatically passes to the surviving joint tenant(s) by operation of law This “right of survivorship” operates such that it is not possible to deal with that joint interest in that asset by Will. The interest does not form part of the estate.

With an asset held as tenants in common with other owners, that asset does form part of the deceased person’s estate. Following the Grant of Probate or Letters of Administration and subject to the terms of the Will, the asset will have to be transmitted into the Executor or Administrator’s name pending getting in all of the deceased’s assets and paying the debts (including any mortgages) in the normal course of the administration of the estate.

In relation to real property or land, the Land and Property Management Authority (formerly Land and Property Information, and prior to that, the Land Titles Office) requires a Transmission Application to be used for this purpose. If the Will prescribes that the asset is to be sold rather than ultimately passed to the beneficiaries, then the transmission application will be used to place the land into the name of the executor for sale.

In relation to assets transferred into the Executor or Administrator’s name, if not to be sold, once the estate is ready for distribution, in respect of each asset held as tenants in common, a further Transmission Application is used to transmit that asset to the relevant beneficiary.

Contact us

For free initial telephone advice in relation to dealing with the administration of a deceased person’s estate, or any application for a Grant of Probate or Letters of Administration, please call one of our Estate Lawyers on (02) 9525 8688.