A question we are often asked is what is the difference between joint tenants and tenants in common? The difference in ownership becomes particularly important when one of the owners passes away.
Joint Tenants
To put it simply, joint tenants means that you own the property equally and when one owner passes away, their share automatically passes to the remaining owner by a process known as survivorship.
This means that you are not able to bequeath your share of the property in your Will. Owning a property as joint tenants is common for couples who intend to live together permanently however, it is also possible to have more than two joint tenants.
Procedural issues
When one of the joint tenants passes away, a Record of Death will need to be lodged with the Queensland Titles Office.
The remaining joint tenant will need to sign the Record of Death and provide a certified copy of the deceased person’s Death Certificate to enable the property to be transferred into their sole name.
This step should be attended to as soon as possible as it may cause significant delays when attempting to sell the property at a later date.
If the surviving tenant fails to attend to the transfer, questions may arise as to the validity of the contract, and/or give rise to damages and loss for the delay.
Tenants in Common
Tenants in common means each party can own the property in equal or unequal shares, for example 30/70 or 50/50, as long as the shares add up to a total of 100% ownership. As a tenant in common, you can bequeath your share of the property in your Will.
Procedural Issues
If the deceased dies leaving a valid Will, their share of the property needs to be transferred to the Executor/s of the estate as personal representatives by way of a Transmission Application.
The Transmission Application will need to be signed by all Executors of the estate and a certified copy of the Will and Death Certificate of the deceased will need to be presented to the Queensland Titles Office.
Once the Transmission Application has registered, the Executors may deal with the property. This may simply mean transferring the deceased’s share to the beneficiaries of the estate.
However, any disputes in relation to the estate may slow down the process and the property can be left sitting in the name/s of the Executor/s for some time while disputes are dealt with.
If the deceased does not have a Will at the time of death, the rules of intestacy apply. When the tenants in common are married or in a de facto relationship, the Courts will generally presume that a person in a long-term relationship would want their share of the property to pass to the remaining owner.
For this reason, it is particularly important for people who own property as tenants in common to have a Will in place so that their share of the property passes to their nominated beneficiaries upon their death.
In the instance of both joint tenants or tenants in common, if the name of the deceased on the Death Certificate, Will (if applicable) and the property are not identical, further complications may arise and the surviving tenant and/or Executor/s of the estate will be required to provide further supporting evidence and reasoning as to why the name is not identical.
We understand losing a loved one is incredibly difficult and the procedural hurdles can be overwhelming. If you require any assistance, our friendly team would be more than happy to assist you.
