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Ownership of Property in Estate Planning Wills Lawyer Brisbane Queensland Sunshine Coast Gold Coast

Ownership of property in estate planning – why does it matter?

When taking instructions for preparation of Wills, I often find that clients want to give their house/property as a gift to a certain beneficiary. While this can be a noble gesture, the ownership structure of the property can be crucial as to whether or not, or how, the gift will take effect.

Property owned with someone else – joint tenants or tenants in common

A property which is owned with someone else (or a number of other people) may be owned as joint tenants or tenants in common, and the difference between the two is crucial in estate planning.

Joint tenants

If a Willmaker owns a property as a joint tenant, then:

  1. Upon their death, the property will automatically pass in ownership to the other owner, and will not form part of the Willmaker’s estate;
  1. If the other owner dies first, then ownership of the property will automatically pass to the Willmaker.

Owning a property as joint tenants can be useful if the Willmaker feels that there is a risk that someone may apply to the Court for further provision from their estate. If the Willmaker passes away before the other owner, the property will not form part of their estate which will be the subject of a claim for further provision.

Tenants in common

If a Willmaker owns a property as tenants in common, then:

  1. They can only gift their share of the property under their Will;
  1. The other share or shares of the property will still be owned by the other owners if the Willmaker passes away;
  1. If the other owner or owners pass away before the Willmaker, their share or shares will be dealt with under their Will/s or under the rules of intestacy, and the Willmaker may then own the property with a person or people they did not initially intend to own it with.

If a Willmaker wishes to distribute their share of a property which is owned as tenants in common, I always recommend they give serious thought to the consequences of the gift. For example, while it may seem fair to distribute their half share of the home they live in with their current partner to their children from a previous relationship, if they pass away, it may not be very practical for their children to own the property with the current partner.

I want to leave my property to a beneficiary under my Will, what should I do?

If you are considering gifting a property to a beneficiary under your Will, or if you have been gifted a property under a Will and are concerned about the implications of receiving that gift, you should contact an experienced estate lawyer. Please contact me should you require assistance or advice on property in estate planning or any other legal issues.

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The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, Wills, Estates and Probate Lawyers (WEP Lawyers) cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. WEP Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. WEP Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.

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Written by—

Chloe Kopilovic

Call 07 3035 4077 to speak with our team now