Family home

Several decades ago, it was expected that the assets of a deceased person would include a family home.  If the family home was registered in joint names (as joint tenants), then on the death of the first of the couple, the title was (and still is) switched by a fairly simple process in the Titles Office into the name of the surviving member of the couple.  This is known as right of survivorship.  It occurs irrespective of the terms of the will of the person who has passed away.

The more significant legal issues then and now arise when the second person dies.  The former joint tile is now in a single name.  Uniquely in Queensland (because of a statutory provision which has been in existence since 1877), it is not necessary to obtain probate of the will to deal with a title in the name of a single but deceased person, if that title is the only significant asset in the estate.  This is because the Titles Office will receive the original will and will change the title (a process called “transmitting”) on the strength of the original will, without requiring probate.

Alternative to family home

More frequently in these modern times, the main residence is no longer on the list of assets because it has been sold to fund the deceased into either retirement living or care accommodation.   Both arrangements have the pragmatic effect that the asset in question is now represented by a sum of money which must be gathered in (rather like a large bank account).  That sum of money might be known as an exit entitlement or it might be known as a refundable accommodation deposit, but either way, it will frequently be a 6-digit sum.

It is quite likely that probate will be required  (for further discussion on the relationship between the monetary size of an asset and the necessity for probate, see Item 5.4 of Estate Planning and Estate Administration Bulletin No 2 – April 2024).

Bank accounts

Bank accounts in the sole name of the deceased will either require or not require probate depending on their value.  Very broadly, accounts with the same bank which aggregate more than about $100,000 will require probate whereas under that figure, there is a reasonable chance that probate will not be required.

Investments (listed shares, units, notes, stapled securities etc) on the stock exchange

Investments obey the same basic rule, that below a certain value probate is not required but above a certain value it is.  However, the cut-off value is more stringent – closer to $15,000 or a little higher.

Superannuation

Much the same comments apply to superannuation, but this is an asset which “behaves” post-death differently from most other assets.  For further information, see Item 4 of Estate Planning and Estate Administration No 2 – April 2024.

Two broad methods of dealing with assets

Most assets are dealt with in one of two ways, bearing in mind that the end result of the administration of a deceased ‘s estate is to see the benefits resting in the hands of the beneficiaries provided for in the will.

In the first place, the assets can be distributed “in specie”.

  • This means that the asset is not sold – it is simply divided and where there was once a single owner (the deceased) thereafter there become as many owners (beneficiaries) as participate in the division of the asset.
  • In specie transfers of assets sometimes require attention in relation to Queensland Duty through the Queensland Revenue Office.
  • By and large, in specie distribution does not activate capital gains tax (CGT).

The other method of distribution is to sell the assets, in which case what is being divided is cash.

  • For the most part, Queensland Duty issues are not relevant, but the sale can potentially activate CGT.  CGT is essentially the difference between what the deceased paid for the assets, and what it is sold for.