The way that a person’s real estate is dealt with, following their death depends on if they owned the property with any other parties, how they owned the property and whether or not they had a valid Will.
If you own a property solely in your name, then what happens to your property is determined by the contents of your legal Will. If you don’t have a Will, then a family member may apply to the Supreme Court (Probate Office Division) for Letters of Administration. The Letters of Administration give the appointed person the ability to deal with your Estate.
If you own property with another person(s), then it depends whether you owned the property as joint tenants or tenants in common.
The differences and consequences are explained as:
Joint Tenants: The ownership of land in common by more than one person where there is a right of survivorship, that is where on the death of one joint owner, the share of the interest of the deceased in transferable to the surviving owner(s).
Where the registered proprietors are shown as joint tenants, a Survivorship Application is prepared. This document is lodged at Landgate and updates the Certificate of Title, to have the deceased proprietor removed. The evidence required to be lodged with the Application is the Death Certificate of the deceased proprietor and a Statutory Declaration. It is important to note that if there is a mortgage on the Certificate of Title, the bank must consent to lodgement of the Survivorship Application.
Tenants in Common: Where there is a desire of two or more people to hold the land in individual shares. For example “X” has 1/3 share and “Y” has a 2/3 share of the land. Both “X” and “Y” can transfer their shares to another person. On the death of one party, the land does not automatically transfer to the remaining owner(s) unless it is stated as such in the Will of the deceased owner.
Where the registered proprietors are shown as tenants in common, a Transmission Application (also known as an Application by Personal Representative) is prepared. This document is lodged at Landgate and updates the Certificate of Title, to have the deceased proprietor removed and the Executor or Administrator added. The evidence required to be lodged with the Application is the Grant of Probate (or Letters of Administration) of the deceased proprietor and in some cases, a Statutory Declaration. It is important to note that if there is a mortgage on the Certificate of Title, the bank must consent to lodgement of the Transmission Application.
Further information may be obtained by visiting Probate Office
When a marriage ends, there’s so much to deal with and it can become really overwhelming. When dealing with real estate, the first thing that you need to ascertain is the value of your property. This determines what your options are and whether you will need to sell the property or whether one of the existing partners can buy the other partner out.
If you intend to transfer the property between the parties (rather than selling the property), it’s a good idea to determine the borrowing capacity of the party who intends to retain the property. This can also determine the outcome. If the borrowing capacity is not sufficient, this may no longer be an option.
I also strongly recommend that parties have Consent Orders issued by the Family Court. These Orders are issued based on information that you submit to the Family Court about how you would like your joint assets separated. Importantly, they sever your financial connection to your former partner and they give a clear indication of the time frames permissible to deal with your assets.
Stamp duty applies to the transfer of property between former partners. Stamp duty is assessed as nominal duty ($20) where there is a Consent Order or a Binding Financial Agreement (BFA) in place. Where there is no Consent Order or BFA, then the duty is assessed based on the market value of the property. For example, if the home is valued at $500,000 and a half share is being transferred from one party to the other, then the duty is assessed on $250,000. An example of stamp duty on this transaction is $6935.00. That’s a big difference in stamp duty!
I recommend that the parties have the request for Orders (called a Form 11) drafted by a professional. You can complete the Form 11 yourself, but enlisting the services of a professional will save you time and money. The Form 11 can be drafted by a solicitor or someone who specialises in the process.
More information may be obtained by visiting the Family Court of WA
Any person that owns real property, should have a valid Will. A Will isn’t a requirement for settlement, but it’s something that I always recommend. If you own real estate and you die without a valid Will, it creates difficulty for those that are left behind.
Contrary to popular belief, the government does not seize your property if you die without a Will. The Public Trustee may be appointed to act as your Administrator, and they charge a fee for this service. If the Public Trustee is not appointed as your administrator, then a family member may be appointed and it may be someone that you would never choose to manage your estate.
The Administration Act 1903, sets out how your assets will be disbursed, if you die without a valid Will.
Having your property disbursed under the Administration Act 1903 may mean that your assets are legislatively disbursed to parties that you really don’t want to leave your estate to. Imagine having a sibling that you don’t speak to, receiving a share of your estate. It may also mean that those that you really care about are left with a minimal share of your estate.
I won’t go into detail here but if you want to see where your money may go, click on the link to the page in the Administration Act 1903 Administration Act 1903 for more information.
Clients often ask, if they can use one of those kits from the post office or newsagent. In short, yes, you can but I would not recommend it. Wills need to be properly signed, witnessed and they need to have specific clauses in them, to make them valid.
The other important issue is to keep your Will updated. I recommend that you review your Will at least every three years. A standard Will, prepared by a professional may cost less than $300.00 so it is something that’s worthwhile spending the money on.
More information about how we deal with your estate can be found at Absolutely Settlements Deceased Estates
An enduring power of attorney is a legal document, which grants the power to a person or persons, appointed by you, to act on your behalf. You should carefully consider whom you appoint at your attorney, because by granting power of attorney, you place power into the hands of another person to make financial and property decisions on your behalf.
You can appoint more than one attorney and you can make it a requirement that the attorneys be required to sign all documents jointly. This may act as a safeguard but it can be difficult if one of your attorneys is unavailable.
You cannot appoint an attorney to act on your behalf unless you have full legal capacity. This means that you must understand the effect of signing the document. Anyone whose ability to understand the effect of signing the enduring power of attorney, by way of mental illness or other impairment cannot legally appoint an attorney, but there are other options available in these circumstances.
Elections may also be made on the enduring power of attorney document, as to when the power of attorney comes into effect.
There are strict requirements about the preparation and witnessing the power of attorney document. I recommend that a solicitor prepare the enduring power of attorney but you can prepare this document yourself. Further information, documents and kits may be obtained from the Office of the Public Advocate. Settlement agents are not permitted to prepare power of attorney documents.
It is also important to note that if you intend to have the enduring power of attorney used to deal with your real estate, then the enduring power of attorney must be lodged with Landgate. Likewise, an enduring power of attorney may be revoked by the attorney and Landgate should be notified, in writing, of any revocation.