Real Estate is often gifted in a Will, or transferred under intestacy. Of course, if it is owned as joint tenants, it will not form part of the Will of the Deceased.

If you choose not to take Probate, the house will remain in the name of the Deceased even after their death. This doesn’t mean that you can’t live in it or otherwise make use of the property, but you won’t own it.

The real estate must be transferred  into the name of the Estate or beneficiaries before it can be dealt with eg sold.

Sale of the property is CGT exempt if:

  • Condition 1 (disposal within two years):
    You dispose of your ownership interest within two years of the person’s death – that is, if the dwelling is sold under a contract and settlement occurs within two years – whether or not you use the dwelling as your main residence or to produce income during the two-year period. (You can apply to extend the two-year period.)
  • Condition 2 (main residence while you own it)
    From the deceased’s death until you dispose of your ownership interest, the dwelling is not used to produce income and is the main residence of one or more of:

    • a person who was the spouse of the deceased immediately before the deceased’s death (but not a spouse who was permanently separated from the deceased)
    • an individual who had a right to occupy the dwelling under the deceased’s will
    • you, as a beneficiary, if you dispose of the dwelling as a beneficiary

Stamp duty will be payable if the property is transferred to someone other than the beneficiary, whether directly from the Executor or from a beneficiary (but the beneficiary won’t be liable for stamp duty when they take their gift).

The property may be in a Trust which will not cease upon the death of the Deceased (subject to other requirements being met) so will not need to be dealt with.