Navigating Property Ownership and Inheritance in NSW

Inheriting property can be a significant life event, but it often comes with complexities, especially in New South Wales (NSW). Understanding how property ownership interacts with inheritance laws is crucial for both those planning their estate and those who stand to inherit.
How is Property Owned in NSW?
In NSW, the way property is owned dictates how it can be inherited. There are two primary ways:
- Sole Ownership: The property is owned by one person. They have the exclusive right to control and transfer the property.
- Co-ownership: Two or more people own the property. There are two types of co-ownership:
- Joint Tenancy: Owners have an equal share of the property and the 'right of survivorship'. If one owner dies, their share automatically passes to the surviving owner(s), regardless of what a Will states.
- Tenancy in Common: Owners can have equal or unequal shares of the property. There is no automatic right of survivorship. Each owner can sell, gift, or bequeath their share in their Will.
What Happens to Property When Someone Dies?
When someone dies in NSW, their property is dealt with according to their legal Will or, if they don't have a Will, according to the laws of intestacy.
- With a Will: The deceased's assets, including property, are distributed to the beneficiaries as specified in the Will. The executor of the Will is responsible for administering the estate.
- Without a Will (Intestacy): If a person dies without a valid Will, their estate is distributed according to a statutory formula set out in NSW legislation. This formula dictates the order in which relatives inherit, with spouses and children typically taking precedence.
Property and Inheritance: Key Considerations
- The Family Home: The family home often holds significant emotional and financial value. How it's owned can have major implications for inheritance. For example, if a couple owns their home as joint tenants, the surviving spouse automatically inherits the entire property. If they own it as tenants in common, the deceased's share will pass according to their Will or the laws of intestacy.
- Jointly Owned Property: As mentioned, joint tenancy has a right of survivorship. This means that if you own a property as a joint tenant with someone else, you can't leave your share to someone else in your Will. It will automatically go to the surviving joint tenant(s).
- Wills and Property: A Will is crucial for directing how your property is distributed, especially if you own it as a tenant in common or have specific wishes about who should inherit your assets.
- Intestacy Rules: If you die without a Will, the intestacy rules in NSW can be complex and may not align with your wishes. For instance, a spouse may not automatically inherit the entire estate if there are also children.
- Challenges to a Will: In NSW, certain people can challenge a Will if they believe they haven't been adequately provided for. This is known as a family provision claim.
- Legal Advice: Given the complexities of property ownership and inheritance, seeking legal advice is highly recommended. A solicitor can help you understand your rights and obligations, draft a valid Will, and navigate the inheritance process.
In Conclusion
Understanding the intricacies of property ownership and inheritance in NSW is essential for effective estate planning and ensuring your assets pass to your intended beneficiaries. Whether you're planning your estate or dealing with an inheritance, seeking professional legal advice can provide clarity and peace of mind.

Senior Solicitor
Email: kristen@hntlegal.com.au









