VIDEO: Joint Tenants vs Tenants in Common - How it Affects Your Last Will & Testament

When purchasing a property in NSW with two or more persons, it is important to consider the structure and proportions of the property with your Lawyer. There are two scenarios when purchasing a property – you can purchase as 'joint tenants' or as 'tenants in common'.

Joint Tenants

Joint tenants have a right of survivorship. Most spouses and de-facto partners purchase a property as joint tenants, which means if one of the joint owners die, then the surviving proprietor will receive the deceased’s interest in the property by “right of survivorship". The deceased's interest in the property will not be dealt with under the provisions in their Will as the survivorship laws operate. Once the surviving proprietor becomes the sole owner, then the property will pass through their Will.

When one of the joint tenants passes away, then a Notice of Death would need to be lodged and registered with the NSW Land Registry Services to remove the name of the deceased from Title. This is a simple process and does not require a Grant of Probate.

Tenants in Common

Proprietors who own a property as Tenants in Common each own a share. When purchasing a property, the share that is owned by the proprietors can either be tenants in common in equal or unequal shares. It is important you discuss this matter with your Lawyer as the death of a proprietor would not automatically pass to the other proprietors held as tenants in common. If one of the proprietors die, then the share owned in the property will be carried out in accordance with the deceased proprietor's Last Will & Testament. If a person dies intestate (in plain words, without a Will), then the deceased's share will be distributed in accordance with the Succession Act 2006.

When one of the proprietors pass away, then a Grant of Probate is required to be issued by the Supreme Court. At this present moment, a Grant of Probate often takes approximately 2-3 months to be granted. Upon obtaining a Grant of probate, a Transmission Application would need to be lodged and registered with the NSW Land Registry Services to remove the name of the deceased from the Title.

There are two types of Transmission Applications:

1. Transmission Application by way of Executor: Given a property cannot be sold in a deceased person’s name, then a Transmission Application would need to be lodged and registered transferring the property into the Executors name to hold in their capacity as Executors until the property is sold.
2. Transmission Application by way of Beneficiaries: This option is when the beneficiaries wish to keep the property. The property is then transferred into the beneficiaries' names.

Should proprietors wish to alter the tenancy then a joint tenancy can be severed by the lodging of a Transfer Severing a Joint Tenancy.  Once severed, registered proprietors will each hold a share in the property and would be both free to bequeath their interest as they wish.  Tenants in Common can be amended by the lodging of a Transfer Altering Tenancy to change from tenants in common to joint tenants. Thereafter, if a proprietor dies, the laws of survivorship with operate. It is important you obtain legal advice prior to carrying out the above as stamp duty may be applicable in certain circumstances.

If you have recently purchased a property, then it's important you speak with an Estates Lawyer regarding how your tenancy in the property can impact your Last Will & Testament.

Should you require further information on the difference between joint tenants and tenants in common, please contact me at Maclarens Lawyers on ph: 02 9682 3777 so that I can provide you with comprehensive and expert advice.