Reviewed by Tan Chua
When a parent or spouse dies, the family home or investment property often becomes the largest asset to deal with. In Victoria, the title cannot simply be changed by agreement. The right process depends on how the property was owned and what the Will says.
Chua Tan Associates acts only on property located in Victoria. Our clients, executors and beneficiaries may live anywhere in the world.
Joint tenants or tenants in common: why it matters
The first question is how the deceased held the title. Co-owners in Victoria usually hold land as joint tenants or as tenants in common. The difference decides who receives the property.
Joint tenants own the whole property together. When one dies, the surviving owner generally takes the whole by survivorship. The deceased’s share does not pass under the Will.
Tenants in common each own a defined share. When one dies, that share forms part of their estate. It passes under the Will, or under intestacy rules if there is no valid Will.
Many families are surprised by this. A Will may leave “my half of the house” to children, yet a joint tenancy can override it. We check the title before any other step.
Survivorship applications when a joint tenant dies
If the deceased was a joint tenant, the survivor applies to Land Use Victoria to remove the deceased’s name. This is commonly called a survivorship application. A grant of probate is usually not needed for this step alone.
The application generally relies on the death certificate and identity verification. Overseas death certificates can raise extra questions about translation and certification. Errors in names or dates across documents can cause delays.
Transmission applications after probate or letters of administration
If the property formed part of the estate, the executor usually needs a grant first. That is a grant of probate (with a Will) or letters of administration (without a valid Will). The grant comes from the Supreme Court of Victoria.
The executor or administrator then lodges a transmission application with Land Use Victoria. This records them as the legal owner in their representative capacity. They can then sell the property or transfer it to beneficiaries.
Selling estate property or transferring it to beneficiaries
The Will may direct a sale, or may leave the property to a named person. Sometimes the executor has a discretion. Beneficiaries may also agree on a different outcome, which needs care.
A sale turns the property into cash for distribution. It suits estates with several beneficiaries, debts to pay, or family members overseas. The executor signs the contract and must act in the interests of the estate as a whole.
A transfer to a beneficiary keeps the property in the family. It suits a child who wants to live in or keep the home. The paperwork, duty treatment and tax position differ from a sale.
Duty and capital gains tax in general terms
A transfer to a beneficiary under a Will may attract a duty concession or exemption. Whether it applies depends on the facts and the terms of the Will. Arrangements outside the Will, such as a sibling buying out another, may be treated differently.
Capital gains tax can arise when estate property is sold or later sold by a beneficiary. Main residence rules, the date the deceased acquired the property, and residency status all matter. Special rules can apply when an asset passes to a beneficiary who is a foreign resident for tax purposes.
These rules change and depend on circumstances. We work with the family’s accountant or tax adviser where needed.
Executors and beneficiaries living overseas
Many executors and beneficiaries live in China, Hong Kong, Taiwan, Malaysia or Singapore. Victorian documents can still be signed abroad. They usually must be witnessed, certified or notarised in a way Australian authorities accept.
Depending on the country, documents may need a notary, an apostille or consular legalisation. Identity verification for land transactions has its own requirements. Getting this wrong can mean re-signing and weeks of lost time.
Chua Tan Associates has a notary public in-house. We can explain what is needed in each country, and coordinate signing across time zones.
Estates with assets in Malaysia, Singapore, Hong Kong, Taiwan or China
Many estates are not only Australian. The deceased may also own property, shares or bank accounts in Asia. Each country has its own succession rules and processes.
A Victorian grant may need to be resealed or recognised elsewhere, or a separate grant obtained. A foreign Will may or may not be effective for Victorian land. The order in which things are done can affect cost, tax and timing.
We handle the Victorian property side. We can work with lawyers in the other countries so the steps fit together.
Mortgages, council rates and land tax during administration
The property still costs money while the estate is administered. Mortgage repayments, council rates, water charges, insurance and owners corporation fees continue. Lenders should be notified, and insurers told the property may be vacant.
Land tax can apply to estate property, and the treatment can change after death. Additional charges may apply where the property is vacant, or where trustees or beneficiaries are foreign. Executors should seek advice early to avoid unexpected assessments.
Concerns we often hear from Asian families
“We live overseas. Can we do this without flying to Melbourne?” Usually, yes. Most steps can be handled remotely, with documents signed and notarised in your country of residence.
“We don’t understand Australian law. What if we make an expensive mistake?” Mistakes with title, duty or tax can be hard to undo. We explain each step in plain language before anything is signed.
“Can you explain everything in Chinese to our family?” Yes. We work in Mandarin, Cantonese and English, so every family member can follow the process.
“My siblings and I disagree about selling or keeping the house.” This is common and sensitive. We help executors act properly and fairly, and can assist families to reach agreement before disputes escalate.
“The bank is asking where the money came from.” Banks may ask about source of funds when estate money moves overseas. Proper records from the estate help answer these questions.
“We want this kept private.” We act with discretion. Family affairs are handled confidentially.
An illustrative example (not a real case)
A widowed mother in Melbourne dies, leaving a Will dividing her estate between two children. One lives in Hong Kong and the other in Malaysia. Her Box Hill unit is held in her sole name, and she also has a bank account in Penang.
The Hong Kong child, as executor, signs the probate papers before a notary there. After the grant, a transmission application is lodged and the unit is sold. The Malaysian assets are dealt with separately, in coordination with a Malaysian lawyer.
Why Asian families choose Chua Tan Associates
Our lawyer Tan Chua has more than three decades of experience in Victorian property law. That experience covers transfers, sales, estates and the many practical problems that arise along the way.
For families with property and relatives across borders, the real value is avoiding costly mistakes. A wrong signature, a missed duty concession or a family dispute can cost far more than getting it right.
- Family firm practising in Melbourne since 1990
- Experience with cross-border families and estates across Asia
- One firm for property, wills and estates, family law and immigration
- Mandarin, Cantonese and English
- Notary public in-house
- Discretion and confidentiality
Frequently asked questions
Do you act on property outside Victoria? No. We act only on property located in Victoria. Clients, executors and beneficiaries may live anywhere.
Do I need probate to transfer a property held as joint tenants? Usually not. The survivor generally applies to Land Use Victoria using the death certificate. Each case should still be checked.
Can an executor who lives overseas sell a Melbourne property? Yes. An overseas executor can act, but documents must be signed and verified correctly from abroad.
Is it better to sell the property or transfer it to a beneficiary? It depends on the Will, the family’s wishes, duty and tax. We help executors compare the options before deciding.
What if my parent also had property in Malaysia, Singapore or China? Those assets follow local rules. We handle the Victorian property and work alongside lawyers in the other countries.
See all our Melbourne property and conveyancing services.
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If a family member has died owning property in Victoria, early advice can save time and prevent mistakes. Book a paid initial consultation with Chua Tan Associates. Clients and family overseas can join online, and we provide a quote once we understand the matter.
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This article is general information only. It is not legal or tax advice and should not be relied on. Please obtain advice about your own circumstances before acting.
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