VIC Tenants in Common with De Facto?

[Rod]

Hi guys,

Facts:

Father dies leaving a valid will. Father was sole proprietor on title for house. Probate has been granted. Will stipulates 50% of real property to de facto, 50% split between kids. De facto also gets life estate.

Questions:

Is it OK for executor to transfer title solely into their name as trustee? Or,

Should title have tenants in common, with de facto having 50%, and executor having 50% on trust until life estate ends?

 

[Rob Legat - SBPL]

Unless contradicted by the terms of the will (or the vagaries of Victorian law), the property should be transferred to the executor. Most wills state something to the effect of the deceased's estate being transferred to the executor upon trust for them to hold, so that is the only real way to give effect to the testator's directions.

The bequest doesn't take effect until the life estate concludes, and who is to say that there isn't a reason why the property isn't reduced to cash before division? It's also common for there to be conditions on a life estate, such as 'for the period they reside there as their primary place of residence', 'unless they remarry', etc. If that condition occurs, it may be difficult to deal with the property if it's party devised.

 

[Rod]

Ta for reply.

Not what I expected but OK.