OK, so you’re about to go into a listing presentation, Form 6 in hand. The plan is to sign up the Vendor and get the property listed. BUT, one of the parties on the Title Search has passed away. Here's what to do! 

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Here are my top tips to making sure the process goes as smoothly as possible.

The first thing you need to do is work out whether the tenancy (or ownership) is Joint Tenants or Tenants in Common. How do I work this out? The tenancy will be noted on the Title Search, right next to the parties names.

So you now know what the tenancy type is….but what’s the difference you ask?

Joint Tenants vs Tenants in Common

When two or more people own a property together in Queensland, they have the option to choose between two types of ownership: Joint Tenancy and Tenancy in Common. This occurs when the property is being purchased – the buyers instructing the conveyancers.

In Joint Tenancy, all owners (there can be more than two) own an equal share of the property and if one owner dies, their share goes to the surviving owner or owners. This is known as the "right of survivorship." Traditionally, you will see husband and wife with this style of ownership, so the survivor automatically has a legal right to inherit the property (TIP: this is the easier of the two to change over at Titles - a much easier and faster process to finalise).

On the other hand, for Tenants in Common, each owner has a specific share of the property and if one owner dies, their share goes to their beneficiaries (people they leave their property to in a will or legal document) rather than the surviving owners. You usually see this style of ownership with siblings, friends, business partners, partnerships that have children from previous marriages, or those who wish to hold the property in unequal shares.

With the Tenants in Common option, the deceased wishes for their share of the property to be disbursed as per their instructions in their will, not automatically transferred to the other owners on Title (note: this process generally takes longer to finalise at Titles – as it may require probate which can take months to come through).

HOW TO CORRECTLY PREPARE YOUR FORM 6 & CONTRACT WITH A DECEASED:

If Joint Tenants:

The survivor/s have a legal right to the deceased’s share of the property - so on both the Form 6 and the Contract, you would list only the survivor or survivors on title as your “client” and as the “seller”. The will terms, beneficiaries & executors etc do not come in to play.

There is then a process required to perform a Request to Record Death, which means lodging the Death Certificate and a Form at Titles QLD, to administratively remove the deceased from the Title. This can be actioned within a traditional 30 day settlement as they have the death certificate, and usually the conveyancer acting for the seller can assist. It is certainly a process that we look after on behalf of our clients. Please note you should also include a Special Condition (that our office can provide) to ensure the Vendor is protected, before signing.

If Tenants in Common (or if the only person on Title has passed):

Replace the deceased person for the Form 6 & Contract, with the following:

(name of executor) as Personal Representative of the Estate of (name of deceased).

If you are unsure who the executor is, please ask the Vendor. If they are unsure, there should be estate lawyers involved who can help.

The next step is a Transmission Application, which is the legal process that appoints a legal representative on behalf of the deceased. Usually, this is taken care of by the estate lawyers. This process must be completed before the matter can settle, as it will remove the deceased from Title and replace the deceased with the Personal Representative who will have the legal right to sell the property.

The above process requires a Special Condition to be inserted into the contract (which we can provide), and is extremely unlikely to be fulfilled in a traditional 30 day settlement situation. This calls for a longer settlement, to ensure the Vendor can get the Transmission Application sorted in time. Please feel free to contact our office for guidance.

Extra Tips:

Remember, dead people cannot sign (so don’t put them on the Form 6 or Contract)

Also, a Power of Attorney (POA) ceases to be valid as soon as the “Principal” (the person giving the POA) is deceased. It is legally useless once the Principal has passed.

Wrap up:

When dealing with how property is held & the process of dealing with a deceased owner, it is a trickier area of property law. As Agents are not allowed to be giving legal advice, it is in your best interests to handball the liability over to the lawyers. We are happy to help and would love to take care of your clients. If you need anything at all – please do get in touch and see how the Empire Legal team can make the experience for your clients seamless, and in turn make your life easier!

We have experience with deceased estate property, and can help with any legals required to remove a deceased from Title. You do not need to wait unitl a property is marketed or under contract - it is cleaner to do it prior (and will prevent delays once the property is ready to sell). Feel free to get in touch with us via the email below!

We look forward to continuing to help thousands of Queenslanders every year with their conveyancing!

Any questions? Want to know more? Get in contact with us via the below form or via info@empirelegal.com.au.

Note: all information is general in nature and as each matter is unique please contact our office for tailored advices: the above does not constitute legal advice.