How You Hold Property Decides If Your Will Controls It.
Know the difference: Sole Owner, Joint Tenant or Tenant-In-Common.
When planning your estate, one crucial factor is often overlooked: how your property is owned. Ownership structure directly impacts whether property becomes part of your Estate and how it is distributed after death. To ensure your assets are handled according to your wishes, it’s important to understand how different types of ownership work.
Did You Know?
The way you hold property determines whether it becomes part of your Estate and whether your Will applies:
- Sole Ownership: If you are the sole registered owner, the property forms part of your Estate. Your Will governs its distribution.
- Joint Tenancy: When you hold property as joint tenants, it does not form part of your Estate. Instead, the right of survivorship applies, and your share automatically passes to the surviving owner.
- Tenants-in-Common: If you own property as tenants-in-common, your share becomes part of your Estate. This means it will be distributed according to your Will. However, if the property is mortgaged or has a registered charge (or any other encumbrance, such as a legal or financial claim), the transfer of ownership may require the consent of third parties, such as a financial institution, before it can proceed.
Sole Registered Proprietor: Included in Your Estate
When you own a property solely, it becomes part of your Estate. You can clearly set out in your Will who should receive it.
Example: You own a home in your name. Upon your death, it is distributed according to your Will.
Joint Tenants: Bypasses the Will
Under joint tenancy, your share passes directly to the surviving co-owner. As a result, this property does not form part of your Estate and your Will does not apply.
Example: You and your spouse own your home as joint tenants. After your death, your spouse receives full ownership, regardless of what your Will says.
Tenants-in-Common: Governed by Your Will
When holding property as tenants-in-common, each owner controls their defined share. Upon death, your share becomes part of your Estate and follows the instructions in your Will.
Example: You and a sibling own a property, each holding 50%. Your 50% share is passed on as directed by your Will.
Mortgages and Encumbrances: Know the Implications
If a property is under mortgage or subject to any legal charge, the transfer process can be more complicated. Generally, third-party, such as a financial institution will need consent is required before the property can be transferred. This can delay administration and affect how quickly beneficiaries receive their entitlements. Therefore, it is crucial to account for this during estate planning.
Why Ownership Structure Matters
The legal form of ownership plays a central role in your estate plan. Without proper alignment between your asset ownership and your Will, your intentions may not be carried out. In some cases, loved ones may be left out of key inheritances due to how a property is titled. That’s why proactive estate planning — guided by sound legal advice — is essential. It’s not just about writing a Will, it’s about making sure every element supports your legacy.
Planning a Property Purchase or Development?
It’s the perfect time to revisit your Will.
Whether you’re buying your next home, building on vacant land, or expanding your property portfolio, these milestones directly affect your estate. Every time you acquire a new asset, your Will should be reviewed to ensure it reflects your current property interests and broader financial goals.
At Madison Marcus, we recognise the close connection between property transactions and estate planning. That’s why we offer a seamless, integrated legal service — combining our Property Law and Wills & Estates teams. Clients who include estate planning as part of their property matters benefit from preferential rates and coordinated legal advice that protects their assets now and into the future.
Madison Marcus: Trusted Advisors in Wills & Estates
At Madison Marcus, we bring together legal experience in estate planning, probate, andproperty law to offer end-to-end support. We help clients assess how their assets are held and structure their Wills accordingly. Our Wills and Estates legal specialists advises individuals, families, and business owners across Australia. Whether your affairs are straightforward or complex, we provide strategic and practical guidance. From reviewing how you hold title to navigating administration requirements, our focus is on clarity, compliance, and your peace of mind. With Madison Marcus, you gain a trusted partner to ensure your legacy is secure.
Contact us today to align your property ownership with your estate plan — and leave love, not loose ends.
This article is provided for general informational purposes only and does not constitute legal advice. While every effort is made to ensure the accuracy of the information provided, Madison Marcus Law Firm makes no representations or warranties, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the content. Readers are advised to seek professional legal advice tailored to their specific circumstances before taking any action based on this information. Madison Marcus Law Firm accepts no liability for any loss or damage incurred as a result of reliance on the information presented herein.MM Website Enquiry Form
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