What Happens to Jointly Owned Property When One Owner Dies?

In situations where one of the parties who jointly own the property dies, it is important for the remaining party to be aware of their rights depending on the form of joint ownership and also depending on the particular inheritance laws. In a situation where the property was jointly owned as a joint tenancy within the state of Western Australia, then the remaining party automatically gets it, while the share of the tenant in common belongs to that party’s estate.
Understanding this distinction helps families plan, manage assets not controlled by wills, and ensure their property arrangements reflect their intentions.

Understanding the Two Types of Joint Property Ownership

There is a significant difference between the two types of joint property ownership in Western Australia that affects the inheritance rights of co-owners who pass away. Checking the Certificate of Title is one of the important steps in identifying which type of joint ownership the property has.

Joint Tenancy and the Survivorship Rights

The right of survivorship is part of joint tenancy. The property’s ownership interest automatically passes to the surviving joint tenant(s) if the owner is deceased. The interest in the property held by the deceased owner does not constitute part of the estate left by them.

For instance, when a couple is registered as joint tenants of an asset like real property, the death of one partner automatically transfers the ownership to the surviving partner. It is not possible for the deceased to transfer their share to other beneficiaries via the will, as survivorship controls the process.

Nevertheless, it remains the surviving partner’s obligation to undergo the registration process at Landgate for the purposes of updating the title of that asset.

Tenancy in Common and Inheritance Rights

Tenancy in common entails each of the partners owning separate and undivided shares in the property. Each of the parties involved owns either equal or different shares.

If the tenant in common passes away, their property share becomes part of their estate and is transferred as per the instructions contained in their last will or the rules stated under intestacy law.

For example, there are two siblings who have an investment property as joint tenants and both of them have 50% ownership. In case of the death of any sibling, the property may go to their nominated beneficiary instead of transferring it automatically to the surviving sibling. The surviving brother keeps his share, whereas the deceased owner’s share is distributed through the process of probate.

Reason Why Some Assets Are Not Governed by Wills

A will is an indispensable part of estate planning; however, not all assets related to a person are governed by wills. In some cases, assets have separate legal provisions through which they are governed and transferred. One such asset is jointly owned property held in joint tenancy form.

Other examples are funds from a life insurance policy paid directly to the nominated beneficiary and superannuation benefits, among others. Assets in a trust or in a company may be dealt with separately since the individual might not own them personally.

The above differences are crucial to ensure that your estate plan takes into account what you wish for your beneficiaries. Checking ownership documents and beneficiary nominations is as important as writing the wills. It is also wise to update your wills after major life events or changes in asset ownership to keep your estate plan aligned with your current circumstances and wishes.

What Happens to the Property After an Owner’s Death?

This will vary based on the way the property was held and the documentation involved.

• For joint tenants: The surviving owner usually applies to Landgate to have the title altered via the survivorship process.
• For tenants in common: The representative of the deceased will have to settle the share via the estate, which may involve applying for probate.
• Where a mortgage exists: The surviving owner or heirs will need to examine how the mortgage operates and its terms.
• Where ownership documents are unclear: Legal assistance can determine what rights are involved and how the estate can be sorted out.

The Supreme Court of Western Australia advises that probate is usually necessary in the case of a deceased person who owned real estate as a tenant in common; a joint tenancy can be settled to the surviving party without probate in this case.

Conclusion

If the death of a property owner should occur, then the disposal of the property shall be dependent on the ownership of the property at the death of the owner. Familiarity with the types of properties that cannot be passed through a will shall help the family to make decisions on their inheritance.

Regular review of property titles, beneficiaries, and estate plans via the services of wills lawyers in Perth is highly recommended for more clarity.