Ask Ban Tacs Question
Is it correct that a property held as Joint Tenants "Passes over"the will and therefore any bequests made in it would therefore be rejected by the ATO?
On the death of the first owner the survivor would automatically get the whole property. They would then have to write a new will with the bequests in it. If they forget or are mentally incompetent then I suspect the whole property is "Intestate" and would have to be managed by the Government. At best, part would end up in their residual part from where bequests cant be made
Does a change from Joint Tenant To TIC trigger a CGT event and would the 12 month ownership period restart?
Regards
Answer
Upon the death of a joint tenant the property becomes owned by the remaining joint tenants. The deceased’s will has no power over a property that is held as joint tenants. A joint tenancy can be changed (at the request of just one of the owners) over to a tenancy in common with the owners all owning an equal share. This will not trigger stamp duty, CGT or a reset of the acquisition date because the owners nor their interests have not changed. Upon the death of a tenant in common their share of the property is dealt with in accordance with their will. If they have no will then I think (different states different rules) the public trustee gets involved but the heir apparent can apply to the court to become administers of the estate.
