When someone dies, you might need to apply for a Grant of Probate or Letters of Administration to transfer or sell property. In this article, our affiliate law firm Safewill Legal explores what happens to property after an owner passes away, and when a Grant will be required.
Dealing with real estate after a death follows a set process, which differs depending on personal circumstances. To help you navigate how this will look for you, we'll be providing information to help you answer the following important questions:
Let's start with what to do in the immediate aftermath of a death.
What to do immediately after someone passes away?
What happens to real estate following the passing of the owner (or one of the owners) all depends on how the property was owned.
Once the type of ownership is established, the Executor of the Will, or the Next of Kin if there is no Will, can apply for a Grant (if necessary). If there is a Will, then a Grant of Probate will likely be required. If there is no Will, then a Grant of Letters of Administration will likely be required.
In most States and Territories in Australia, a Grant of Probate or Letters of Administration is required to authorise the Executor or Administrator to deal with the property following the passing of the owner. Whether a Grant is required also depends on the type of ownership.
If a Grant is required, then the property cannot be sold or transferred until the Grant has been made by the Supreme Court.
How can property be owned?
The most common types of property ownership include:
Joint Tenants (also known as Joint Proprietor)
Tenants in Common
If the property is owned solely, then a Grant will be required so the Executor or Administrator has the authority to deal with the property.
If you own a property as a Joint Tenant with someone else, this means:
Both of you have equal ownership of the property;
When you pass away, your ownership of the property is automatically transferred to the surviving joint tenant(s);
As such, the property cannot be gifted in your Will when you pass away; and
A Grant won’t be required to transfer the property into the name of the other joint owner.
Tenant in Common
Property can also be co-owned by two or more people in a manner known as tenants in common.
If you own a property as Tenants in Common, this means:
Two or more people own a distinct share or percentage of the property in their own name;
Your share in the property can be dealt with separately;
The percentage share you own in the property forms part of your estate when you die;
A Grant will be required to deal with the transfer of the share in the property, either pursuant to the terms of the Will or laws of intestacy.
For more information on the types of property ownership, and how they may impact your estate planning, you may wish to read this article.
What happens to the mortgage?
Unfortunately, most of our debts are not forgiven when we pass away, and a mortgage can only be discharged once it is paid off in full.
If the property is to be inherited by a beneficiary, and they wish to have the property transferred into their name (i.e., they want to keep the property), then they will become responsible for the mortgage and the bank will need to go through a refinancing process with the beneficiary.
Alternatively, if the property is going to be sold, the mortgage can be discharged using the proceeds of sale. The balance of funds, after discharging the mortgage, can then be paid to the beneficiary.
To further assist, Safewill has prepared this guide, which sets out what happens to your debts when you die.
What if the property is owned with someone else?
If you co-own property with someone else as Joint Tenants, and all owners are on the mortgage account, then all owners have the responsibility to pay off the debt.
If in the event you were to pass away, the surviving owner(s) will continue to have responsibility for the mortgage and must be the ones to pay off the remaining mortgage.
If the surviving owner(s) cannot afford to pay the mortgage they are left with, they may decide to sell the property.
What if there is an investment property?
If a property is being leased out, you would need to look at the lease agreement. Typically, the lease agreement will continue between the existing tenant and the Executor or Administrator of the estate.
If the agreement needs to be terminated, the tenant must be provided with appropriate notice based on the terms of the lease agreement.
What if you were a tenant in a rental property?
If the deceased was renting a home, and there are no other parties to the lease agreement, the home will be handed back to the real estate agent once all belongings have been removed.
If a bond was paid at the commencement of the lease, then the Executor or Administrator will be able to claim the bond back and have it paid to the estate.
If there were multiple tenants on the agreement, then they will likely be able to continue with the lease.
Start planning ahead now
Get started today with Safewill to make end-of-life planning effortless.
If a loved one has passed away and you require assistance with applying for a Grant of Probate or Letters of Administration, Safewill Legal can assist. Our team is local and ready to provide you with complimentary guidance about where to start. Start a live chat or call us on 1300 942 586.
Disclaimer: The information contained in this guide is not intended to be a substitute for legal advice but as a basic guide to the application process. If you have concerns or queries you should consult a legal professional about your specific circumstances.