Simplifying Deceased Estate Property Transfers with PEXA

What is PEXA?

PEXA is an online conveyancing portal that Solicitors and Conveyancers use to complete property transactions, including property transmissions relating to a deceased estate.

In order for a Solicitor or Conveyancer to act on your behalf through PEXA, a list of documents must be signed, and a verification of identity process must be conducted in accordance with the Legislation and Regulations.

How can a person own property?

Property can be owned in many ways, which include:

1. Sole proprietor

This is where property is owned in a person’s sole name.

When a sole proprietor passes away, the property needs to be transferred in accordance with their Will or the laws of intestacy in NSW.

2. Joint tenants

This is where property is owned jointly with one or more other people.

If one of the joint property owners passes away, the surviving property owner (the surviving joint tenant) will automatically inherit the property under law, regardless of the terms of the deceased person’s Will.

3. Tenants in common

This is where property is owned together with other people, either in equal shares or in varying percentages.

Each tenant in common owns a defined share of the property.

If one of the property owners passes away, their share is not automatically given to the surviving owners. Instead, the deceased person’s share is transferred in accordance with their Will or the laws of intestacy in their State.

How can you deal with the property when someone dies?

Once you find out how the property is held (either sole ownership, joint tenancy or tenancy in common), you’ll then have a clearer picture of the way in which the property can be transmitted.

Sole Proprietor

If the property is held solely by the deceased person, then the property needs to be transmitted in accordance with the Will or the laws of intestacy.

The Executors or Administrators of the Estate either need to decide whether to sell the property, or transfer it to the beneficiaries. Depending on the decision, one of two transfers will need to occur:

1. A property transmission to Executor or Administrator, for the impending sale of the property; or

2. A property transmission direct to Beneficiaries under the Will or in accordance with the laws of intestacy in NSW.

In either instance, a Grant of Probate or a Grant of Letters of Administration is required.

Joint Tenants

If the property is held as joint tenants, and one of the proprietors passes away, the property is then required to be transmitted to the surviving joint tenant.

This transmission is called a “Notice of Death”, which removes the deceased joint tenant’s name from the property title. The surviving joint tenant’s name remains on the property title (either as the sole owner or with other surviving joint tenants).

There may be a situation in which all joint proprietors pass away. In this scenario the property will need to be transferred in accordance with the Will of the last surviving joint tenant. An example of this is as follows:

• Jane and Bob own a property as joint tenants in NSW.

• Bob passes away and the property is transmitted by way of Notice of Death to Jane.

• Jane passes away one year later and the property is transmitted in accordance with her Will, once a Grant of Probate has been received by the NSW Supreme Court.

Tenants in Common

If the property is held by the deceased person together with one or more people as tenants in common, then only the deceased’s share in the property can be transmitted in accordance with the Will or the laws of intestacy.

In this instance, a Grant of Probate or a Grant of Letters of Administration is required.

Are there Government fees and charges?

Government fees and other charges vary based on state, however, generally there are land registry fees, PEXA fees and also nominal stamp duty fees.

In some cases there may be Capital Gains Tax (CGT) payable upon the sale of a deceased estate property, and Executors and Administrators should obtain specialist taxation and financial advice in this instance.

Planning ahead

Safewill Legal can provide you with specialist advice on how to deal with properties held in a deceased person’s name, in connection with applying for the necessary Grant of Probate or Letters of Administration with the Supreme Court.

We can also assist with PEXA transactions in certain Australian states, including NSW.

If you’re looking for advice on deceased estate properties or assistance with transmitting the property, contact us at Safewill Legal. We’re happy to help.

The information contained in this article is general in nature and does not take into account your personal situation. It is intended as a guide and may not reflect every possible outcome relevant to your circumstances. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice from a wills and estates lawyer.