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Assets Where Probate Not Needed

Notices of Death and Dealing With Jointly Held Assets

There are 2 ways for multiple people to hold real property:

  • tenants in common; and
  • joint tenants.

In the case of a tenancy in common, each co-owner owns a defined proportion of the land. It may be held as “tenants in common in equal shares” or the shares may be unequal to reflect differing contributions to the purchase price.

In the joint tenancy situation, on the death of one joint tenant, that deceased person’s title or interest in the property automatically passes to the surviving joint tenant(s) by operation of law. A usual situation where this occurs is where a couple own their home as joint tenants. On the death of one of two joint tenants, the survivor becomes the sole owner of the property and there is no longer a joint tenancy.

Where property is held as joint tenants, the way in which the “right of survivorship” operates means that it is not possible to deal with that joint interest in that land by Will. The interest of the deceased person in the land does not form part of that person’s estate and will automatically pass to the spouse on that person’s death via the right of survivorship.

In order to have the formal legal title of jointly owned land updated to reflect the death of a joint tenant, the Land and Property Management Authority (formerly Land and Property Information, and prior to that, the Land Titles Office) requires a Notice of Death to be lodged. We can prepare and lodge this and the other associated documents for you.

Similar requirements are in place with banks, share registries and financial institutions in dealing with jointly owned assets. On the death of one of two “joint” owners of a share or bank account, the surviving joint tenants own that asset and it does not form part of the deceased’s estate.

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