The estate’s tax and property papers · A guide published by Dotto
Schedule 4 of 6 · Land
Transferring land after a death in Queensland
In Queensland, land the person owned with others as joint tenants passes straight to the survivors, who record the death on the title with a Form 4. Land they owned alone, or their share as a tenant in common, comes off their name through a transmission application: to the executor or administrator on a Form 5 or 5A, or directly to the beneficiary the will names on a Form 6.
General information, not legal advice. Titles Queensland gives general information about its forms and recommends speaking to a lawyer for advice about a particular situation; it asks people to confirm what they need with their solicitor before lodging. Each state has its own land registry, forms and rules; this schedule follows Queensland’s, with a note on New South Wales at the end.
4.1How it was owned decides the path
The first fact to find is how the person held the land, and the place to find it is a current title search.
| How it was held | At the death | The registry form |
|---|---|---|
| Joint tenants | The person’s interest passes at once to the surviving joint tenants by right of survivorship, whatever the will says. | Form 4, Request to record death, lodged by the survivors. |
| Tenants in common | There is no survivorship: the person’s share becomes part of their estate. | A transmission application: Form 5, 5A or 6. |
| Sole owner | Title passes first to the executor, or to the Public Trustee if there is no executor able and willing to act, under section 45 of the Succession Act 1981. | A transmission application: Form 5, 5A or 6. |
4.2The three transmission forms
- Form 5 is for a personal representative who holds a grant of probate or letters of administration made in Queensland, resealed there, or made in a place whose grants Queensland recognises (another Australian state or territory, New Zealand or the United Kingdom). Once registered, the applicant appears on the title as “personal representative”.
- Form 5A is for a personal representative without such a grant. With a will, the Registrar of Titles must be satisfied the applicant would succeed in applying for a grant. Without a will, it can be used only if the Registrar thinks the applicant would succeed in applying for a grant, the estate’s gross value in Queensland at the date of death, leaving out joint tenancy property, was not more than $300,000, and no letters of administration were granted in Queensland within 6 months of the death. In these cases the Registrar does something like the work of a probate court, and may ask for more evidence about the will.
- Form 6 registers the beneficiary the will gives the land to, with the written consent of the personal representative (or the person entitled to be appointed). The beneficiary goes on the title as owner, and the personal representative is expected to make sure the estate’s distribution is in order before consenting.
Where the Public Trustee administers an estate under an order or an election to administer, the evidence it lodges with a Form 5 is a certificate of authority. The forms themselves, with Form 24A (property information for a transmission application), are on Titles Queensland’s forms page.
4.3What goes with the form
Titles Queensland’s guide to recording a joint tenant’s death sets out what a lodgement needs, and the practice manual adds what a transmission needs. Taken together, as a list to tick off:
- The title details from a current title search: the property description, title reference and owners.
- Evidence of the death: a copy of the official death certificate, short or long extract. A good photocopy is accepted if certified as a true copy by a justice of the peace, a commissioner for declarations or an Australian lawyer.
- For a Form 5, the grant; for a transmission without a grant, generally the original last will itself.
- The form signed in front of a qualified witness, who can’t be a party to it: in Australia, for example, a justice of the peace, a commissioner for declarations, an Australian lawyer or a notary public. A transmission application signed by a solicitor on the applicant’s behalf needs no witness.
- Payment of the lodgement fee, which Titles Queensland’s fee calculator works out.
An original will needs gentle handling. The manual asks that nothing be done to it at all: no staples, pins, pencil notes or sticky notes, and nothing removed, because marks of an attachment can suggest another document was once fastened to it. Once lodged with a transmission, the registry keeps the original will as a permanent public record.
Titles Queensland says most correctly prepared dealings are registered within 3 to 5 working days. If something is missing, it sends a requisition notice listing what needs attention, usually with a rejection date two months from the date of issue.
4.4Timing written into the law and the will
A beneficiary under a Queensland will must survive the person by 30 days unless the will says otherwise, so a Form 6 can’t be signed within 30 days of the death in that case (section 33B of the Succession Act 1981). A Form 6 applicant also declares that they were not a witness to the will.
Some things in a will can’t go on a title. A life estate created by a will can’t be recorded, so the land is put in the personal representative’s name with a Form 5 or 5A instead. A right to live in the house, a charge or another condition in the will can’t be recorded either.
4.5The tax that follows the land
When land passes from the estate to a beneficiary, the executor disregards any capital gain or loss on it. What the executor spends on the transfer, such as conveyancing fees, can go into the beneficiary’s cost base for the day they sell. If the land is the family home, the rules on selling it are in selling the family home after a death.
4.6A note on New South Wales
Legal Aid NSW sets out the same broad split. Land owned as joint tenants passes to the surviving joint tenant whatever their relationship to the person; land owned alone or as tenants in common needs probate or letters of administration before the estate can be distributed. It adds that real property can’t be transferred while a mortgage is registered on the title unless the mortgage is repaid or refinanced, and that transferring a house, unit or land is work for a private lawyer, who charges a fee.