Jointly Owned Property and Estate Planning: What Really Happens on Death?
When it comes to estate planning, one of the most misunderstood areas is the treatment of jointly owned property. Whether it’s the family home, investment property, or a jointly held asset in a business structure, the way ownership is recorded can have a major impact on what happens after one co-owner passes away.
At Perspective Law, we regularly advise clients on how to navigate the legal and practical complexities of jointly owned assets—particularly where estate plans involve multiple entities, blended families, or intergenerational wealth strategies.
Joint Tenants vs Tenants in Common: Why It Matters
In Queensland, there are two main ways to co-own property:
- Joint Tenants
Ownership is held equally and indivisibly. When one joint tenant dies, their share automatically passes to the surviving owner(s), regardless of what their Will says. This is known as the right of survivorship. - Tenants in Common
Each person owns a defined share (e.g. 50%, 75%, etc.). When one owner dies, their share forms part of their estate and is distributed according to their Will.
Many people assume that a Will covers all of their assets—but if a property is owned as joint tenants, it may not pass under the Will at all. This can have unintended consequences, especially where the surviving owner is from a second marriage or where adult children expect to inherit.
The Estate Planning Risks
Without careful planning, jointly owned property can undermine your broader estate strategy. Some common risks include:
- Unequal outcomes for beneficiaries if property passes outside the estate
- Family conflict when expectations don’t align with legal entitlements
- Unintended tax consequences, particularly where property forms part of a wider structure such as a self-managed superannuation fund (SMSF), trust or private company. For instance, if a property that was originally a pre-CGT asset is partially converted—such as when a 50% ownership interest changes—the affected portion may become a post-CGT asset. This can trigger a capital gains tax liability, which the executors may need to satisfy from the estate proceeds if the property is sold.
- Lack of control over valuable assets, particularly when surviving owners aren’t aligned with your broader succession intentions
This is particularly important for couples in blended families, those with business interests, or where property is held jointly across generations.
Can You Change the Ownership Structure?
Yes—but it needs to be done strategically and with legal advice.
A joint tenancy can be severed, converting the ownership to tenants in common so each person’s share can be gifted in their Will. This is a common approach for those wanting to leave their share of a property to children from a previous relationship while allowing a spouse or partner to continue living in the property (often supported by a life interest or right to reside).
An owner might transfer from sole ownership their main residence to a spouse or de facto and the transfer is not dutiable which may save arguments in their estate (particularly by step-children).
That said, restructuring ownership may have stamp duty, capital gains tax, or land tax implications—so it’s critical to assess the legal and financial impacts before making changes.
Superannuation and Joint Assets: A Common Misconception
It’s worth noting that superannuation, like jointly held property, usually sits outside the Will unless certain steps are taken (such as a binding death benefit nomination). This adds another layer of complexity when coordinating an estate plan that includes jointly owned assets, super, and discretionary trusts.
We often work alongside financial advisers and accountants to ensure these moving parts work together—not against each other.
What Should You Do?
If you own property jointly with someone else, ask yourself:
- Does the current ownership structure reflect your estate planning intentions?
- Will your share pass to the right person, at the right time, under the right structure?
- Have you considered how this fits with your Will, trust, company or superannuation arrangements?
These aren’t just technical questions—they’re practical ones that go to the heart of whether your legacy will be managed the way you intend.
How We Can Help
At Perspective Law, we help clients with complex structures and long-term planning needs to align their property ownership with their estate plan. Whether it’s reviewing title deeds, severing joint tenancies, or integrating asset ownership with your trust or company arrangements, we can guide you through the legal and strategic decisions.
Contact us today or phone us on 07 3839 7555 to review your jointly owned property arrangements as part of a broader estate and succession strategy.
Further information
Why Estate Planning is About More Than Just a Will
Securing Your Legacy – How to Protect your Family Trust
Managing Trusts and Unpaid Present Entitlements in Your Will