A transfer of dutiable property is subject to duty under the Duties Act 2000 (the Duties Act) unless an exemption applies. Where dutiable property is transferred in accordance with the terms of a will or codicil it may be exempt from duty under section 42 of the Duties Act.
Section 42 of the Duties Act exempts certain transfers of dutiable property where the transfer is by the legal personal representative of a deceased person (the executor) to a beneficiary of the deceased's estate and is not made for valuable consideration.
This ruling explains how the exemption under s42 applies.
Note: no duty needs to be paid on a Joint Tenant survivorship application. You do, however, need to complete a notice of acquisition for land tax purposes. You should lodge this with the Land Registry, together with your transfer of land application by surviving proprietor.
Property transferred under a will or codicil
Where the transfer of dutiable property is made under, and conforms strictly with, the trusts contained in the will of the deceased person, it can be lodged directly with Land Victoria. There is no requirement for such transfers to be marked as exempt by us.
Kate’s will bequeaths her home (valued at $300,000) to Stephen, Andrew and Rachel, in equal shares. The executor arranges for the transfer of property to Stephen, Andrew and Rachel in equal shares. This transfer is strictly in accordance with the will and can be lodged directly with Land Victoria.
Property transfers to be lodged
All other transfers of dutiable property arising from a deceased estate must be lodged with us.
Using the example above, if the property was transferred into Stephen’s sole name and he paid $100,000 to Andrew and $100,000 to Rachel, the transfer must be lodged with us because it does not transfer the property into the names of the three beneficiaries.
Transfers which must be lodged with us include:
- A transfer arising on an intestacy,
- A transfer of dutiable property not made for valuable consideration by the legal personal representative of the deceased person to a beneficiary in satisfaction of the beneficiary’s entitlement under the will or arising on an intestacy,
- A transfer that has taken place under Part IV of the Administration and Probate Act 1958,
- A transfer of a life interest and/or right to reside, and
- A transfer under a testamentary trust
You cannot use Duties Online for these particular transactions. Instead, you can use our Electronic Lodgement Model (ELM) to electronically submit the transaction. We will consider whether duty is payable or whether the transfer is exempt and notify you accordingly.
There are different lodging requirements, depending on the exemption you are seeking. Our Evidentiary Requirements Manual will explain what documents you need to lodge.
Life estates and estates in remainder
Life estates and estates in remainder are dutiable property under the Duties Act. Accordingly, the creation or transfer of a life estate or estate in remainder is subject to duty under the Duties Act unless an exemption applies.
A life estate is one type of freehold estate. It arises by grant or operation of law for the benefit of a person for the rest of his or her life. The key difference between an estate in fee simple and a life interest is that the life interest exists for the duration of the person's life whereas a freehold estate is not limited in duration.
A life estate can be created by an instrument of transfer of land, a declaration of trust or under a will. In any case, there must be clear words showing an intention to create a life estate or interest, such as "to A for life" rather than simply a 'right to reside'. Life estates are most commonly created by will. Our ruling provides more information on how to distinguish between a right to reside and a life estate for the purposes of s42 of the Duties Act.
Where the creation or transfer of a life estate or estate in remainder is not exempt, its dutiable value needs to be determined. We currently use a money table for life estate prepared by the South Australian Revenue Office to determine the value of the life estate or estate in remainder. We then use this to calculate duty.
If you wish to provide your own actuarial valuation, you are entitled to do so.
A testamentary trust is a trust which is specified in the testator’s will and arises on the testator's death.
The testator intends that a trustee(s) holds the property in accordance with the terms of the testamentary trust for specified beneficiaries. At some future time, the trustee will distribute the property to those beneficiaries.
Where a testator leaves dutiable property to the trustee(s) of a testamentary trust, there can be two transfers of property:
- From the deceased estate, i.e. from the executor of the will, to the trustee of the testamentary trust (the first transfer), and
- From the trust at a future date, i.e. from the trustee of the testamentary trust, to the beneficiaries of that trust (the second transfer)
We will treat the first transfer as if it were a transfer to a beneficiary under the will of the deceased, so long as the transfer conforms to the trust(s) contained in the will and is not for valuable consideration. As such, it will be exempt from duty under s42 of the Duties Act.
The exemption in s42 does not apply to the second transfer given the trustee is no longer the legal personal representative of the deceased. The transfer may, however, be exempt from duty under other exemptions in the Duties Act (e.g. s36 or 36A). This will depend on the type of testamentary trust and the circumstances of the transaction.
Where the will provides for the executor and the trustee of testamentary trust to be the same person, the executor’s role changes to that of the trustee of the testamentary trust when administration of the estate is complete. In this instance, there is a dutiable transaction which will be exempt if it satisfies s42 of the Duties Act.