A common worry when buying a property with another person is “what happens to that property in the event that one of the joint owners passes away?” Generally, you have two options in deciding how best to hold the title of the property jointly between two or more persons;
- As Joint-Tenants; or
- As Tenants-in-Common
The way in which you choose to hold the title of your property will have an impact in the event of the death of a joint owner, as these two options have significantly different outcomes.
As Joint-Tenants
If you choose to hold the title of the property as joint tenants, you are choosing to hold the property in absolute equal shares and thus, upon the death of one of the property owners, the remaining, or surviving, property owner/s will gain the title of the property as a whole. An easy way to remember this is; survivor takes all. This option is the most common for couples who buy property together. It ensures that the property will go to their partner in the event of their death with little testamentary fuss, as the property will not be ‘given away’ under a Will. In saying this, upon the death of a joint tenant, the surviving joint tenant will still need to apply to become the sole owner, however Probate of the Will of the deceased will not be required to change the title of the property.
Tenants-in-Common
The second option is known as tenants in common. This option allows owners to have equal or unequal shares in the property. If the property is held in unequal shares, this may be because the different title proportions reflect the different amounts contributed to the property by each owner. For example, if one person contributed more to buying the property than the other, than accordingly that person would own more of the property as they paid more to purchase it.
Unlike joint tenancy, on the death of a joint owner, their share in the property will not revert to the surviving joint owner/s, but shall instead be dealt with in accordance with the Deceased’s Will, or through the rules of intestacy if there is no valid Will. Thus the Deceased’s shares in the property will be included in their estate, and the Executor will need to apply to the Supreme Court of Victoria for Probate of the Will. To obtain Probate is to obtain an authority to manage the Estate of the Deceased and to deal with the land as it is to be distributed in the Will.
Tenants in Common is used more by family members, such as siblings, who may buy property together but upon their death they want their share in that property to go to their children, instead of the surviving sibling.
How do you choose?
It is important to consider each option in depth, to determine which would best suit you and your circumstances, and often is it most helpful to gain some professional advice on the matter. Remember to decide whether you want your Will to determine what happens to the property, or whether you want the property to be kept out of your Will in case it is challenged at a later date. If you are currently unsure how the title of your jointly bought property is held, or if you want to make changes to this aspect, tenancy can be changed at any time prior to the death of either owner of the property. For example, any joint tenant prior to their death can ‘sever’ their joint tenancy relationship at any time, and thus the property holding would automatically revert to tenants in common.
This article has been written by our Graduate Lawyer Hannah Newton and is intended for information only. For specific advice in relation to your circumstances please call Septimus Jones & Lee on 9613 6555.