What Happens to Jointly Owned Property When Someone Dies in Australia?

Detailed Explanation

This page covers the Australian rules. For how survivorship works in general, and how other countries compare, see what happens to jointly owned property when one owner dies.

Land in Australia is registered under the Torrens title system, run separately by each state and territory. The title records who owns the property and, where there's more than one owner, whether they are joint tenants or tenants in common. That entry largely decides what happens next.

Joint tenants: the survivor takes the whole

When a joint tenant dies, their interest passes automatically to the surviving joint tenant (or is shared equally among the survivors if there are several). The ATO describes it plainly: the deceased's interest isn't an asset of their estate. It doesn't matter what the will says, and the executor doesn't need a grant of probate to deal with it.

What remains is paperwork. The survivor asks the land titles registry to record the death so the title shows them as sole owner. In Queensland this is done with Form 4 (Request to record death) and a certified copy of the death certificate, plus a registry fee worked out using the Titles Queensland fee calculator. The other states and territories have equivalent forms and fees. Some registries now require most dealings to be lodged electronically, which in practice means going through a conveyancer or solicitor.

Tenants in common: the share goes through the estate

Tenants in common each hold a stated share, which can be unequal. When one dies, the ATO notes there's no right of survivorship: the share becomes an asset of the deceased estate. It passes to whoever inherits under the will, or under the state's intestacy rules if there's no will (see what happens if someone dies without a will in Australia). The executor usually needs a grant of probate before the share can be transferred or sold, although the threshold at which a registry or buyer insists on one varies.

Joint bank accounts

Most Australian joint bank accounts operate on survivorship under the bank's own terms, so the balance becomes the survivor's once the bank sees a death certificate. Banks set their own deceased-estate procedures, so ask the bank what it needs. An account held in the deceased's sole name is different: it forms part of the estate, and the bank may need probate before releasing larger balances.

Capital gains tax on a later sale

Australia has no inheritance tax, and becoming sole owner by survivorship isn't itself a taxable event. The capital gains tax consequences arrive when the survivor later sells. For CGT purposes, the ATO treats the deceased's interest as if it passed through their estate to the surviving joint tenants as beneficiaries. The same inherited-asset rules then apply, including the main residence exemption if it was the deceased's home. See do you pay tax on an inheritance in Australia for how the cost base and the two-year window for selling an inherited home work.

New South Wales: notional estate

NSW differs from the other states here. Under the Succession Act 2006 (NSW), a court hearing a family provision claim can designate certain property outside the estate as "notional estate" and use it to provide for an eligible person. That can include an interest that passed to a co-owner by survivorship. So in NSW, holding a home as joint tenants doesn't guarantee it's out of reach of a claim by, for example, children from an earlier relationship. The rules are technical and turn on the facts, so if a claim is threatened, get advice from a solicitor. How do you contest a will in Australia covers family provision claims more broadly.

Things to Consider

• Superannuation is separate. Super death benefits are paid by the fund trustee under the fund's rules and any binding nomination, not under property law. See how superannuation is paid out when someone dies.
• A joint mortgage stays with the survivor. Joint borrowers are usually each liable for the whole loan. Check for mortgage protection insurance, and for life cover held inside super, which may be paid to the survivor and help with repayments.
• Executors still need the full picture. Joint assets pass outside the estate, but executors typically still note them, especially in NSW where they can matter for a family provision claim. See what does an executor do.
• Property overseas follows local law. An Australian owner's holiday home in another country is governed by that country's rules, which may not recognise survivorship.

Common Mistakes

• Assuming the will covers a jointly owned home. A gift of "my half of the house" in a will has no effect if the house was held as joint tenants. Severance has to happen while the owner is alive.
• Not updating the title. Leaving the deceased's name on the title causes delays when the survivor later sells or refinances. Recording the death is usually simple and cheap.
• Selling without checking CGT. A survivor who sells without understanding how the inherited half is treated can end up with an unexpected tax bill, particularly on an investment property.
• Treating joint tenancy as claim-proof in NSW. Notional estate rules mean a survivorship interest can still be pulled into a family provision claim.