LawTalk Blog

Gifting property in your Will

joint tenants and tenants in common

When making a Will, there is often confusion in respect to what a person is able to "gift". 

Obviously, you can only give away, in your Will, things that you actually own. It is not possible to give someone else's asset away in your Will. That is perfectly logical.

However, from time to time, people attempt to do just that, without even knowing that they are doing it.

The reason is that assets which are jointly owned with someone else cannot be gifted in a Will to anyone other than the other joint owner(s). So, for instance, if you are the co-owner of a beach house, or boat, or car or any other asset and you attempt to gift that asset to another person other than the other co-owners, that gift in your Will shall fail.

What is the law of survivorship?

The "law of survivorship" says that assets which are jointly owned do not have a defined interest for the joint owners. Nobody owns a specific "share" in the assets. Everyone owns it together, and the last surviving owner of the asset will own it absolutely. At that point, they can gift it in their Will to a third party.

"There is a way to get
around that."

There is a way to get around that.

An asset owned by more than one person can be owned jointly (where it is real estate, this is referred to as a "joint tenancy") or in defined shares (in real estate, called a "tenancy in common"). 

A joint tenancy results in the law of survivorship applying as discussed above.

A tenancy in common has a different result. Tenants in common have defined shares and interests in the assets. In real estate, one tenant may have 30% of the land and the other tenant 70% of the land. The percentages are described on the Certificate of Title. If no percentage appears in that document, then the land is held as joint tenants.

Tenants in common are free to dispose of their share of the land as they see fit under their Will. The surviving tenant in common has no say over that, and will not automatically get that land under the law of survivorship if the other tenant in common dies.

A joint tenancy can be severed into a tenancy in common if the parties wish. There are consequences which flow from that and legal advice should always be sought.

There are good reasons to own property as joint tenants, and there are equally good reasons to own property as tenants in common, particularly in the case of second marriages where there are children from a first marriage.

The best time to decide how you are going to own land (or any other asset) is when it is purchased. Unfortunately, often the topic is not raised by agents or conveyancers and the result is that the land is automatically purchased as joint tenants, which is often the "default" position.

Andersons Solicitors undertake conveyancing, but unlike conveyancers, are able to provide structured legal advice about the best method of owning an asset and the consequences that will have on estate planning and the later disposal of that asset (including tax implications).

If you are considering purchasing land or any other significant asset, legal advice should be sought or at least consideration given to how that asset is to be held and what the long term effect of that may be.


Get in touch with today's blog writer:
Felix Hoelscher

Partner in Commercial Litigation and Disputes  and  Wills and Estates

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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