QLD Tenants in Common - How should Will be Worded?

[Daria]

I am the sole Beneficiary of my father's estate comprising of a house he owned with his brother (1/2 share tenants in common). I would like to avoid obtaining Probate. Is it possible to transfer the property to my name given that it's held as tenants in common?

The titles office says it can be done without probate but depends on how the will is worded. How should the will be worded?

Any help would be appreciated thanks.

 

[Daria]

Hi, I am just wondering if anyone is able to help me with my question above. Sorry if it wasn't very clear. Many thanks

 

[Sarah J]

Hi Daria,

You may not require probate if:

• the estate is small (and applying for probate will eat up most of the estate in costs and expenses); and
• you do not need probate to distribute the property (e.g. it the transfer of property is relatively straight forward).

It does depend on a case by case basis. Your father is leaving you his share of the property. His brother will continue to own the remaining shares. Essentially, this will be a land transfer. You need to contact the Land Titles Office. The Office may require probate, in which case, you will need to obtain one. Otherwise, the will may be sufficient.

 

[Daria]

Hi Sarah

Thanks for replying. I did contact titles office who advised:

a. they could not provide legal advice; and
b. that i WOULD need probate UNLESS the will was worded a certain way (titles office would not provide advice on how the will
was supposed to be worded).

I have read the Succession Act, Land Titles Act and Titles Office Practice Manual to find out the answer but cannot see anywhere where it discusses transferring the land when it is owned as tenants in common. Plenty of info about joint tenancy and owning solely. My next idea is to lodge the Form 6 at the Titles Office with the Will and Death Certificate and hope that it isn't requisitioned for requiring Probate as its possible the Titles Office would damage the Will in the process of trying to register.

thanks again

 

[Sarah J]

Thanks for updating us, Daria. That seems like a reasonable plan. Hope it goes through. A transfer of land owned as TIC is easier than JT as it does not involve transferring the JT land into TIC first. You may still be able to follow part of the steps in the information about JTs.