The Application of Survivorship and Its Impact on the Probate Process
In the world of estate planning and administration, the concept of survivorship plays a crucial role, particularly when dealing with jointly owned property. In Victoria, the application of survivorship can significantly influence the probate process, potentially simplifying the transfer of certain assets upon death. This blog post examines what an application of survivorship entails and its implications on the probate process.
What is an Application of Survivorship?
The application of survivorship pertains to the legal principle of joint tenancy. When two or more individuals jointly own property as joint tenants, each owner holds an equal share of the property (check out my previous blog post on this topic here). A defining feature of joint tenancy is the right of survivorship. This means that upon the death of one joint tenant, their share of the property automatically transfers to the surviving joint tenant(s), effectively bypassing the probate process.
For example, if a husband and wife own their home as joint tenants and the wife passes away, her share of the property automatically transfers to the husband. This transfer is seamless and does not require the property to go through probate.
How to Apply for Survivorship in Victoria
The process to formally acknowledge the transfer of property under the right of survivorship involves lodging an application with the Land Use Victoria office. The surviving joint tenant must submit an "Application by Surviving Proprietor" form, along with supporting documents, such as the property title and a statutory declaration. Once these documents are verified, the property’s title is updated to reflect the surviving joint tenant as the sole owner.
Impact on the Probate Process
The application of survivorship can have a significant impact on the probate process. Here are some key points to consider:
Avoidance of Probate for Jointly Owned Property: When property is held as joint tenants, the right of survivorship allows for the direct transfer of ownership to the surviving joint tenant(s) without the need for probate. This can save time and reduce the administrative burden on the estate.
Reduction in Estate Size: As jointly owned property transfers directly to the surviving tenant(s), it is not included in the deceased's estate for probate purposes. This can simplify the probate process and potentially reduce estate administration costs and fees.
Immediate Access to Property: The surviving joint tenant(s) gain immediate ownership and access to the property, which can be particularly beneficial for ensuring continuity in the use and management of the property.
Simplified Transfer Process: The application of survivorship involves a straightforward administrative procedure, avoiding a complex and lengthy probate process.
Considerations and Limitations
While the application of survivorship offers several benefits, it is important to understand its limitations and potential implications:
Not Applicable to Tenancy in Common: The right of survivorship only applies to property held as joint tenants. Property held as tenants in common does not automatically transfer to the surviving owner(s) and must go through probate.
Potential for Disputes: Disputes may arise among family members or other heirs if the deceased’s intentions regarding jointly owned property are not clearly documented.
Tax Implications: Transferring property via survivorship may have tax implications that need to be considered and managed appropriately.
The application of survivorship provides a streamlined method for transferring jointly owned property upon the death of a joint tenant. By bypassing the probate process, it offers significant advantages in terms of time, cost, and administrative simplicity. However, it is crucial to understand the specific circumstances and legal implications associated with survivorship to ensure that estate planning goals are effectively achieved. Consulting with a legal professional specialising in estate planning can provide valuable guidance and ensure that all legal requirements are met.
Please note, this article is general in nature and does not take into account your personal situation or circumstances. For further information please contact Kenney Legal at info@kenneylegal.com.au or contact us via our social media networks.