VIC Change to Property Disbursement in Will - Can It Be Done?

[Peter K]

My mother left her house in her will equally to myself, brother and sister. My brother and sister desire that the house be solely in my name so as to maintain their Centrelink entitlements. Both are pensioners. Can this be done and would there be any stamp duty or other costs involved?
Thank you.

 

[Sophea]

Hi Peter K,

there is an exemption from conveyance stamp duty on: conveyances to an executor or administrator of a deceased person’s estate, or to the beneficiaries of the deceased person’s estate pursuant to the terms of the will. However I assume when you sell it, stamp duty will be payable together with any capital gains tax etc.

 

[Peter K]

Thank you very much Sophea for you answer. I just need to confirm. Placing the house solely in my name, is that still acting in pursuant of the terms of the will as mum left it equally to we three children. I do not intend to sell the house as my brother and sister will live in it forever. Perhaps I should mention that I am both a executor and beneficiary. So firstly, can I seek to have the title transferred to me alone and secondly in this circumstance, will stamp duty be exempt?
Thank you so much for your time and advice.
Peter K

 

[Sophea]

The beneficiaries can decide to do whatever they wish with their inheritance, so as long as the other two beneficiaries (your brother and sister) won't try and dispute what you have done at a later date, you can come to your own arrangement that works for you. The only problem comes when you eventually sell the house, your brother and sister need to be sure that they will receive their share, and how it is willed from your estate because you are the legal owner of it. I.e. if you die - i suppose you could leave it to your spouse or one of your children but grant your brother and sister a life estate in the property. I would just make sure you are all clear on those types of things before you go ahead without making this entirely legitimate.

And yes since its a transfer from deceased to executor it would be free of stamp duty. With respect to capital gains tax on deceased estates, any capital gain or loss made on an asset is disregarded if, when the deceased dies, their property passes either to their legal personal representative or to a beneficiary or from their legal personal representative to a beneficiary.

 

[Peter K]

Thank you very much Sophea. I'm clear now. Great service.

Peter K

 

[bluetongue]

To protect your interests as beneficiary, you should request that the other beneficiaries disclaim in writing their interests in the gift.
Any CGT, though not payable by the LPR or beneficiary when the property is transferred into their name/s, may be payable on the sale of the property if a CGT event was triggered. If the property is transferred into the name of someone who does not live in the property, it is possible that the property is not considered to be their principal residence and may have a CGT liabilty upon sale. if you are in a situation such as this, I suggest you discuss this with your accountant.

 

[Peter K]

Thanks Bluetounge. Appreciate your interest and comment and will take on board.
All the best
Peter K