When a partner or loved one passes away, there are many things to deal with. Property ownership is often overlooked, but it is one of the most important issues to resolve.
Property ownership determines what happens to a home after death. The outcome depends on how the property is held and whether a well-drafted Will exists.
In simple terms, property may either form part of the deceased estate or pass automatically to a surviving owner. This depends largely on whether the property was owned solely, as tenants in common, or as joint tenants.
What are the different types of property ownership?
Before you deal with a deceased estate, you need to understand the main types of property ownership. In Victoria, there are three common structures:
- Sole ownership: One person owns the property and appears on the title alone.
- Tenants in common: Two or more people own shares in the property. A deceased owner’s share forms part of their estate and can generally be dealt with by their executor or administrator.
- Joint tenants: Two or more people own the property together with a right of survivorship. When one owner dies, the property automatically passes to the surviving owner or owners.
Land Use Victoria confirms that a deceased owner’s interest as a tenant in common is an asset of the deceased estate, while property held by joint proprietors passes to the surviving owner or owners. Land Use Victoria’s information on tenants in common provides further detail.
Some properties use mixed ownership structures. One share may be held jointly, while another is held as tenants in common. This means it is important to check the property’s title before determining what happens after an owner dies.
What happens to property after someone dies?
The process depends on how the property was owned.
- If the property was solely owned by the deceased, it generally forms part of the deceased estate.
- If the property was held as tenants in common, the deceased’s share generally forms part of their estate.
- If the property was held as joint tenants, the deceased’s interest generally passes to the surviving owner or owners through the right of survivorship.
This distinction is important because property that forms part of the deceased estate may need to be dealt with by an executor or administrator, while jointly owned property can generally be dealt with through the survivorship process.
When ownership is sole ownership or tenants in common
Tenants in common and sole ownership follow a different process after death from joint tenancy. The deceased’s interest does not automatically transfer to another owner. Instead, it forms part of their estate.
With a Will
A valid Will guides how the property is distributed. The Will appoints an executor to manage the estate.
Depending on the assets in the estate and the requirements of the organisations dealing with those assets, the executor may need to apply for a grant of probate before dealing with the property. Probate confirms the executor’s legal authority to administer the estate.
It is important to note that probate is not automatically required for every deceased estate. The Supreme Court of Victoria confirms that whether a grant is required depends on the assets involved and the requirements of the relevant asset holders.
The probate process can take several weeks. The Supreme Court of Victoria currently states that, once an application has been filed, it usually takes 5–10 working days for the Probate Office to review it, although the overall process also includes steps that must occur before filing.
Irvine Lawyers can assist with probate applications where a grant is required.
Without a Will
If no Will exists, a suitable person will generally need to apply for letters of administration. This process is similar to probate but applies where there is no valid Will or no executor able to act.
The Court applies rules that determine who may apply to administer the estate. The administrator then manages the estate and arranges for property and other assets to be dealt with according to the applicable law.
The Supreme Court of Victoria provides separate processes for applications for probate and letters of administration.
What is required to transfer property?
The documents and requirements will depend on the circumstances of the estate and the type of property transfer involved. They may include:
- Probate or letters of administration, where required
- Certificate of title
- Title search
- Verification of identity
- Transfer or transmission of land forms
You must also ensure compliance with duty exemptions or pay any required government fees. The State Revenue Office Victoria outlines specific duty concessions that may apply to deceased estate property transfers.
Land Use Victoria identifies different applications depending on the circumstances. For example, an executor or administrator may use a transmission application after a grant has been obtained, while a surviving proprietor may apply to update the title where land was held jointly. Land Use Victoria’s lodgement guidance explains the relevant processes. Our team at Irvine Lawyers can assist you through our dedicated property conveyancing services to ensure title transfers are completed correctly.
When ownership is joint tenants
Joint tenancy works differently because the right of survivorship applies.
When one owner dies, their interest in the property generally passes automatically to the surviving owner or owners rather than forming part of the deceased’s estate.
Even so, legal steps still need to be completed to update the title. Land Use Victoria confirms that a surviving proprietor can apply to update the title following the death of a co-owner.
Land Use Victoria’s information on joint proprietors explains how property held jointly passes to surviving owners.
Documents required
Depending on the circumstances, documents required to update the title may include:
- Death certificate
- Certificate of title
- Verification of identity
- Title search
- Notice of death or relevant survivorship application
Does a Will determine who gets a jointly owned property?
Not necessarily. The way the property is legally owned can be just as important as what is stated in the Will.
For example, where property is held as joint tenants, the deceased owner’s interest generally passes to the surviving owner through the right of survivorship. The property therefore does not generally pass under the deceased person’s Will.
By contrast, where the deceased owned the property solely or held a share as a tenant in common, that interest generally forms part of the deceased estate and may be dealt with under the Will, subject to the applicable legal requirements.
This is why checking the title and ownership structure is an important first step when dealing with property after someone’s death.
What should you do after a property owner dies?
If a property owner has died, the first steps will generally include:
- Check the title. Confirm whether the property was owned solely, as tenants in common or as joint tenants.
- Locate the Will. If there is a valid Will, identify the executor and the instructions concerning the estate.
- Determine whether a grant is required. Probate or letters of administration may be necessary depending on the circumstances.
- Identify the required property documents. This may include title information, identity documents, death certificates and relevant land transfer or transmission forms.
- Complete the title transfer process. The appropriate application will depend on the way the property was owned and the circumstances of the estate.
Each state has different forms and requirements, so the process described above applies specifically to property in Victoria.
Why legal advice can help
Property ownership after death can become complicated where there are multiple owners, no Will, a disputed estate, a mortgage, or uncertainty about how the property is held.
Getting the ownership structure and estate process right can help avoid unnecessary delays and ensure the property is dealt with in accordance with the applicable legal requirements.
How Irvine Lawyers Can Help
Irvine Lawyers can help you manage probate, letters of administration and property transfers after death.
If you are dealing with a property that belonged to a loved one, contact Irvine Lawyers today for advice on wills, probate and deceased estates.
FAQs About Property After Death
What happens to a house when someone dies?
What happens to a house after someone dies depends on how the property was owned. If it was solely owned by the deceased or held as tenants in common, the deceased’s interest generally forms part of their estate. If it was held as joint tenants, the interest generally passes to the surviving owner or owners through the right of survivorship.
Does a house automatically go to the spouse after death?
Not necessarily. The outcome depends on the ownership structure, the Will and the applicable law. If the property was held jointly, the surviving owner may receive the deceased’s interest through survivorship. If the deceased owned the property solely or as a tenant in common, the interest may instead form part of the estate.
Is probate required to transfer property after death in Victoria?
Not always. The Supreme Court of Victoria confirms that there is no automatic requirement to apply for probate for every estate. Whether a grant is required depends on the assets involved and the requirements of the organisations holding or registering those assets.
What happens to property owned as tenants in common when one owner dies?
The deceased owner’s share generally forms part of their estate rather than automatically passing to the other owner. The share can then be dealt with by the executor or administrator once they have the appropriate authority to administer the estate.
What happens to property owned as joint tenants when one owner dies?
When property is held as joint tenants, the deceased owner’s interest generally passes to the surviving owner or owners through the right of survivorship. The title still needs to be updated following the death.
What if someone dies without a Will and owns property?
If someone dies without a valid Will, their estate is dealt with under the applicable intestacy laws. A suitable person may need to apply for letters of administration before they can formally administer the estate and deal with assets such as property.