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Joint Property in Australia: Understanding Tenants in Common and What Happens Upon Death

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Sunstate Conveyancing explains joint tenancy vs tenants in common and deceased estates

Joint Property in Australia: Understanding Tenants in Common and What Happens Upon Death

When it comes to property ownership in Australia, there are several ways in which individuals can hold property jointly. One common arrangement is known as “tenants in common.” In this article, we will explore what tenants in common means in the context of joint property ownership in Australia and what happens when one of the co-owners passes away.

Joint property ownership is a common practice in Australia, especially among couples, family members, or business partners. It allows multiple individuals to share the ownership of a property. However, the way in which the ownership is structured can vary. One of the options is known as “tenants in common,” which offers a unique set of advantages and considerations.

What is Joint Property Ownership in Australia?

In Australia, joint property ownership typically falls into two categories: joint tenants and tenants in common. Let’s delve into the differences between these two arrangements.

Understanding Joint Tenants vs. Tenants in Common

• Joint Tenants: When individuals hold a property as joint tenants, they have an undivided and equal interest in the property. In the event of the death of one owner, their share automatically passes to the surviving owner(s). This is known as the “right of survivorship.”

• Tenants in Common: In contrast, tenants in common have distinct and separate shares of the property. Each owner can own a different percentage of the property, and their shares can be transferred or inherited according to their wishes. Tenants in common do not have the right of survivorship.

 

Benefits of Tenants in Common

Tenants in common offers several benefits, including greater flexibility in property ownership. Each co-owner can specify their share of the property and designate beneficiaries in their will.

Tenants in Common and Estate Planning

Estate planning is a crucial aspect of tenants in common ownership. Since each owner’s share can be passed on as per their will, it allows for a more controlled and customized approach to inheritance.

The Importance of a Will

To ensure that your share of the property goes to the intended beneficiaries, it’s essential to have a valid will in place. Without a will, your share may be distributed according to intestacy laws, which may not align with your wishes.

What Happens When a Tenant in Common Dies?

When a tenant in common passes away, several scenarios can unfold based on the deceased owner’s will and the decisions of the remaining co-owners.

Transfer of Ownership

If the deceased owner has specified a beneficiary in their will, their share of the property will transfer to the designated person.

Sale of the Property

Alternatively, the co-owners may decide to sell the property and distribute the proceeds according to each owner’s share.

Right of Survivorship

Unlike joint tenancy, tenants in common do not have an automatic right of survivorship. Therefore, the share of a deceased tenant in common does not automatically transfer to the surviving co-owners.

Tax Implications

Tenants in common ownership can have tax implications, including capital gains tax and potential stamp duty. It’s essential to understand these implications and plan accordingly.

Challenges and Disputes

Disputes among co-owners can arise, especially when it comes to property maintenance, decision-making, or the sale of the property. It’s advisable to have clear agreements in place to address potential issues.

 

Changing from Joint Tenants to Tenants in Common

If you currently hold property as joint tenants and wish to switch to tenants in common, it is possible to make this change, but it requires the consent of all co-owners. Legal advice is recommended when making such a transition.

Tenants in common ownership provides a flexible and customizable way to share property with others. Understanding the implications of this arrangement, especially in the event of a co-owner’s death, is essential for effective estate planning.

 

Role of Conveyancers in Deceased Estates:

Conveyancers play a crucial role in navigating the complexities of deceased estates when it comes to property ownership, particularly in the context of tenants in common. When a co-owner passes away, conveyancers facilitate the legal transfer of the deceased owner’s share to the designated beneficiary or heir, as specified in their will. They ensure that all necessary legal documents are prepared, filed, and processed correctly. Additionally, conveyancers help co-owners understand their rights and responsibilities in the event of a co-owner’s death, providing clarity and guidance during this challenging time. Their expertise ensures that the property’s transition occurs smoothly and in compliance with relevant laws and regulations. Speak with your Solicitor as there could be fees envolved with transferring the title to the new owner.

Moreover, if the surviving co-owners decide to sell the property or make changes to the ownership structure after the death of a tenant in common, conveyancers can assist in managing the legal aspects of these transactions. Their role is pivotal in safeguarding the interests of all parties involved and facilitating a seamless transition of property ownership, even in the complex and emotionally charged circumstances of a deceased estate.

 

FAQs

1. How is tenants in common different from joint tenancy?

• Tenants in common have separate shares and no right of survivorship, while joint tenants have equal shares with the right of survivorship.

2. Can I change from joint tenancy to tenants in common?

• Yes, it is possible, but all co-owners must agree to the change, and legal advice is advisable.

3. Do tenants in common have equal ownership shares?

• No, tenants in common can have different ownership shares based on their preferences.

4. What happens if a tenant in common doesn’t have a will?

• In such cases, the share of the property may be distributed according to intestacy laws.

5. Are there any tax benefits to tenants in common ownership?

• Tax implications can vary, so it’s important to consult with a tax advisor to understand the specific benefits or challenges.

 

This is general advice only, for specific legal advice speak with your legal representative.

Contact us
contracts@sunstateconveyancing.com.au 07 3828 2069
Brisbane