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Dealing with real estate in the name of a deceased owner involves lodging one or more applications at Landgate, the state government’s Land Information Authority. The following information will help you select the correct application(s).
Search the title
Before preparing any application it is wise to obtain an up-to-date copy of the certificate of title for the property from Landgate, known as a “title search”, to determine the current owner and identify any mortgages or other encumbrances registered against the land.
From the title search it will be clear whether the deceased is:
- the sole owner of the property;
- a co-owner of the land as a joint tenants with one or more others; or
- a co-owner of the land as tenants in common with one or more others.
Properties which the deceased owned as a joint tenant with others do not form part of the estate and cannot be disposed of by Will. Ownership of this property passes to the surviving joint tenant(s), if more than one in equal shares.
It is sensible to remove the deceased’s name from the title. To do that the surviving joint tenant makes an Application by Survivor (survivorship application) to Landgate. The application must include the death certificate and a statutory declaration may also be required. There is no need to lodge a survivorship application immediately upon the death of a joint tenant. The application can just as easily be done at the time of disposal of the property, whether by sale or upon the death of the last surviving joint owner.
Sole owner or tenants in common
- Firstly, the executor or administrator must obtain a Grant of Probate or Letters of Administration from the Supreme Court of Western Australia. Landgate will not permit property transfers without a Grant.
- Secondly, the property must be transferred into the name of the executor or administrator of the estate, in their capacity as executor or administrator, known as an Application by Personal Representative or a transmission application. This application is an essential first step whether the property is to be sold or transferred to one or more beneficiaries of the estate.
- Thirdly and finally, the property can be transferred to the beneficiary or beneficiaries named in the Will or, in the case of a sale, to the buyer. Landgate describes this application as a Transfer of Land. As a general rule, transfers to beneficiaries will attract only nominal ($20) transfer duty.