The short answer: if you are registered as joint tenants, when one owner dies their interest passes automatically to the surviving co-owner(s), and a will cannot change this. If you are registered as tenants in common, each owner has a defined share (for example 50/50 or 70/30), which on death passes under their will or the intestacy rules. Couples often choose joint tenancy, while friends, parents buying with adult children, and blended families often consider tenancy in common.
本文着重讨论买房时如何选择登记方式和签订共有协议. 若想了解现有物业, 联名账户和股票在身故后如何传承, 以及与遗嘱的关系, 请参阅《联名持有还是按遗嘱分配?物业和股票究竟如何传承》.
At a glance
- Joint tenancy: the owners together hold the whole interest, and the right of survivorship applies.
- Tenancy in common: shares can be unequal, and each owner can leave their share by will.
- The form of ownership is stated in the transfer of land and should be decided before settlement.
- In Victoria, a joint tenancy can generally be converted to a tenancy in common later (called ‘severance’), and vice versa.
- Whatever the registered shares, each borrower on a joint loan is usually liable for the whole loan.
How do the two forms differ?
Under a joint tenancy, the law treats the co-owners as a single unit – there is no ‘my half’. When one owner dies, the survivor simply lodges a survivorship application with Land Use Victoria, with the death certificate, to have the property registered in their name, generally without needing probate. Under a tenancy in common, each owner holds a distinct share which, on death, forms part of their estate and is dealt with by the executor, usually requiring probate.
Note that under either form, selling the whole property or refinancing against it generally requires every co-owner to sign. A tenant in common can deal with their own share, but few buyers want only part of a property. If co-owners cannot agree, any of them can apply to a court or the Victorian Civil and Administrative Tribunal (VCAT) for an order to divide or sell the co-owned property, which tends to be slow and costly – another reason to have an agreement in place from the start.
Which suits which situation?
Spouses or long-term partners: if each wants the other to keep the home after their death, joint tenancy is simple and direct. But if one has children from a previous relationship, think carefully: once the home passes automatically to the surviving spouse, those children may receive nothing from it.
Parents buying with adult children: where parents contribute more and the child less, tenancy in common lets the shares reflect actual contributions and lets the parents provide for other children by will, reducing disputes between siblings.
Friends or business partners: tenancy in common is usually more suitable, together with a co-ownership agreement covering contributions, loan repayments, letting arrangements and what happens if someone wants to exit.
Can you change it later?
Yes. In Victoria a joint tenant can generally convert a joint tenancy into a tenancy in common by registering the appropriate document with Land Use Victoria, in some cases even without the other owner's agreement. On separation or relationship breakdown, many people consider doing this so that the property does not pass automatically to the other person if they die unexpectedly. Because this step may have family law or tax consequences, get legal advice first. If only the form of co-ownership changes and each person's beneficial proportion stays the same, there is generally a stamp duty exemption or concession, but you must provide evidence as the State Revenue Office requires.
Common misconceptions
- ‘I'll just leave the house to my children in my will.’ – If you hold it as joint tenants, your will does not operate on that property.
- ‘I own 30% on title, so I only owe the bank 30%.’ – Joint loans are usually joint and several, so each borrower may be pursued for the whole debt.
- ‘We've separated, so title decides the split.’ – The family courts consider both parties' overall contributions and needs, not just the registered title.
- ‘Joint tenancy means no estate disputes.’ – It can avoid probate, but it will not necessarily prevent other disputes between family members.
Practical checklist before deciding
- Record each person's source and amount of contribution.
- Consider whether anyone has children from an earlier relationship or other dependants.
- Check that existing wills are consistent with the form of ownership.
- If you are not spouses, sign a written co-ownership agreement.
- If a co-owner is overseas, also check foreign investment approval and additional taxes.
FAQs
How do I know which form of ownership I have now?
Check the Register Search Statement. ‘Joint proprietors’ usually indicates a joint tenancy; if each person's share is listed, such as ‘1/2 share’, it is a tenancy in common.
If one joint tenant dies, is probate needed?
For that property, the survivor usually just lodges a survivorship application with Land Use Victoria and generally does not need probate. The deceased's other assets may still require it.
Must tenancy-in-common shares match contributions?
Not necessarily – the co-owners can agree. But a large gap between shares and contributions may raise gift, tax or future dispute issues, so get legal and tax advice first.
Should I convert to tenants in common straight after separating?
Many people consider it so that the property does not pass automatically to a former partner if they die unexpectedly. But it interacts with family law arrangements, so talk to a lawyer before deciding.
Can my parents overseas co-own with me?
Yes, but overseas persons usually need foreign investment approval and may be liable for foreign purchaser duty and land tax surcharges, which can affect the costs of the whole property, so assess this before signing.
Chua Tan Associates has practised in Melbourne since 1990, acting on property purchases and sales, conveyancing, building contracts and property disputes in Mandarin, Cantonese and English. Tan Chua has long handled property and commercial matters for Melbourne's Chinese community. For help, call 03 9602 3988 or contact us online. We can meet at our Melbourne CBD office or by video.
This page provides general information only and is not legal advice.
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