Written by Alessia Matina
When a property owner passes away in Victoria, determining who is entitled to the property can be complex. The process depends on the type of ownership and involves specific legal steps with Land Use Victoria (the Land Titles Office). Understanding the difference between Joint Tenancy and Tenants in Common is crucial for executors, administrators, and beneficiaries.
Types of Property Ownership in Victoria
Before property can be transferred after someone’s death, it is essential to identify how the property was owned:
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Sole Ownership
The deceased was the only person listed on the title. -
Joint Tenancy
All owners hold the property together as a whole. The key feature is the right of survivorship—when one owner dies, their interest automatically passes to the surviving joint tenant(s). -
Tenants in Common
Each owner holds a distinct share of the property. There is no right of survivorship—the deceased’s share forms part of their estate and is distributed according to their will or the laws of intestacy.
Transmission Applications: When Is One Required?
If the property was owned solely by the deceased or as a tenant in common, the deceased’s interest does not automatically transfer to beneficiaries. Instead, a Transmission Application must be lodged with Land Use Victoria.
What Is a Transmission Application?
A Transmission Application is a formal request to transfer the deceased’s property interest to the person responsible for administering the estate (the executor or administrator). Only after this process can the property be distributed to beneficiaries.
Executors and Administrators: Who Can Apply?
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Executor
Appointed in the deceased’s will to manage the estate and carry out their wishes. -
Administrator
Appointed by the Court when there is no valid will (the deceased died intestate). The administrator has similar responsibilities to an executor.
Important:
Before lodging a Transmission Application, the executor or administrator must obtain a Grant of Probate (if there is a will) or Letters of Administration (if there is no will). These are legal documents issued by the Supreme Court of Victoria, confirming the authority to deal with the estate.
Survivorship Applications: For Joint Tenants
If the property was held as joint tenants, the deceased’s share automatically passes to the surviving owner(s) by the right of survivorship. This process is independent of the will or intestacy laws.
Updating the Title
Although the legal interest passes automatically, the property title is not updated until a Survivorship Application is lodged with Land Use Victoria. This application formally removes the deceased’s name from the Certificate of Title and records the surviving proprietor(s) as the sole owner(s).
What If There Is a Mortgage?
If the property is mortgaged, the process may involve additional steps:
- The lender (bank or financial institution) must be notified.
- The lender may need to provide consent before the title can be updated.
- Additional documentation may be required to satisfy the lender’s requirements.
How Ferraro and Singh Lawyers Can Help
Dealing with property transfers after a loved one’s death can be overwhelming. At Ferraro and Singh Lawyers, we offer compassionate, expert guidance throughout the process, including:
- Advising on the type of property ownership and the correct legal process.
- Preparing and lodging Transmission and Survivorship Applications with Land Use Victoria.
- Assisting with applications for Grants of Probate or Letters of Administration.
- Liaising with banks and other stakeholders to ensure a smooth transfer, even where a mortgage is involved.
- Ensuring all legal requirements are met so property is transferred efficiently and correctly.
Need Help with Property Transfers or Estate Administration?
If you are an executor, administrator, or beneficiary facing property transfer issues after a death, our experienced team is here to support you.
Contact Ferraro and Singh Lawyers today for clear advice and practical assistance with all aspects of Victorian property law and estate administration.
Let us help you navigate this challenging time with confidence and care.
