When a property owner dies in NSW, how the property passes depends on how the title was held. If the owners were joint tenants, the home passes automatically to the survivor, who records the death with a notice of death. If the person owned it alone, or held a share as a tenant in common, that property or share passes through the estate by a transmission application. That usually happens after the Supreme Court has granted probate or letters of administration. Moving a property into a family trust or a company is different again: there is no family exemption, and duty is assessed on market value.
If you are reading this because someone close to you has died, we are sorry. The property side does not have to be sorted this week. The register will wait, and the steps below can be taken one at a time, when you are ready.
This page covers the notice of death, the transmission application, probate and duty. Then it covers moving a property into a family trust, a company or a self managed super fund. It is NSW only; the other states and territories have their own forms. The rest of the NSW transfer process is on our NSW conveyancing page.
What happens to a property when the owner dies?
The first question is not who the will names. It is how the title was held. Joint tenants own the whole property together in equal, undivided shares, and when one dies their share passes automatically to the survivor, outside the will. Tenants in common own defined shares, equal or unequal, and each share passes under the owner’s will, or under the intestacy rules if there is no valid will. A person who owned the property alone leaves the whole of it to pass through their estate.
Most couples are joint tenants. Friends, siblings and investors are more often tenants in common. If you are not sure which applies, a title search of the register is the document to get. Our guide to joint tenants vs tenants in common explains the two. Our post on Torrens, strata and off the plan title covers the kind of title itself.
Joint tenants
The survivor already holds the property by survivorship. Nothing is bought, sold or gifted. The surviving owner lodges a notice of death so the register shows their name alone. No grant of probate is needed for that step, and no duty is payable.
Sole owner or tenant in common
The property, or the share, forms part of the estate. The executor or administrator usually needs a grant from the Supreme Court first. They then lodge a transmission application and transfer the property to the person entitled under the will or on intestacy.
What is a notice of death?
A notice of death is the form a surviving joint tenant lodges with NSW Land Registry Services to have the deceased owner’s name removed from the title. It is made under section 101 of the Real Property Act 1900. The surviving joint tenant signs it, and it is supported by evidence of the death, usually the death certificate. No stamp duty is payable on it. The requirements are in the Registrar General’s Guidelines on the notice of death.
Since October 2021, NSW dealings have been lodged electronically by a subscriber such as a solicitor or conveyancer, and a notice of death is no exception. Paper certificates of title were cancelled on 11 October 2021 and are no longer issued in NSW, so there is no old paper title to find.
With joint tenants, nobody is transferring anything. The register is catching up with what the law has already done.
What is a transmission application?
A transmission application is how a property passes from a person who has died, where it did not pass by survivorship. It is made under section 93 of the Real Property Act 1900 and lodged with NSW Land Registry Services. There are two versions. In the usual one, the executor or administrator applies to be registered as the owner in that capacity, and then transfers the property to the beneficiary. In the other, the beneficiary applies to be registered directly, with the consent of the executor or administrator. The requirements are on the Registrar General’s Guidelines on transmission applications.
Either way, the application has to be supported by the grant: probate, or letters of administration. A death certificate on its own is not accepted.
Probate is a court order made by the Supreme Court of NSW. It confirms that the will is valid and lets the executor distribute the estate as the will says. Letters of administration are the equivalent order where there is no will, the will is not valid, or no executor named in it is able or willing to act. The court asks that the application be made within six months of the death unless there is a reasonable explanation for the delay. Most uncontested applications are now filed online through the Supreme Court of NSW probate registry.
- Death certificate obtained
- Probate or letters of administration granted
- Transmission application lodged
- Transfer to the beneficiary registered
When is a grant not needed? Where the property was held as joint tenants, because it passed by survivorship and a notice of death does the job. Where the property was in the deceased person’s name alone, a grant is generally needed before the land registry will register anyone else.
Check the title before anything is lodged. A mortgage, or a caveat lodged by someone who claims an interest in the property, has to be dealt with before a transfer to a beneficiary can be registered. Our guide to caveats on property in NSW explains what a caveat does and how it comes off.
Is there stamp duty on an inherited property?
Usually very little. A transfer from the executor or administrator to a beneficiary, made under and in conformity with the will or the intestacy rules, attracts nominal duty of $100 at the time of writing. Where the beneficiary applies by transmission application with the executor’s consent, the same nominal duty applies. Where the executor or administrator applies to be registered solely in that role, as legal personal representative, the registration is generally exempt. A transmission that takes the property beneficially may attract nominal duty. The Revenue NSW page on transfer duty on a deceased estate lists the documents it needs.
The words that matter are “in conformity with the will”. If the beneficiaries agree among themselves to divide things differently, the duty depends on what has changed. A lawful appropriation that satisfies the entitlements the will already gives may still qualify for nominal duty. A beneficiary who takes property beyond their entitlement may owe ordinary duty on the excess, and Revenue NSW will want a valuation to work it out. A beneficiary who buys the property from the estate under a contract of sale may not get the same treatment as an inheritance transfer or an appropriation, so ask before anything is signed.
| Situation | What is lodged | Duty |
|---|---|---|
| Surviving joint tenant | Notice of death | None |
| Executor or administrator registering as owner | Transmission application | Generally exempt when registered solely as legal personal representative; nominal duty may apply if the transmission takes the property beneficially |
| Beneficiary taking exactly what the will gives | Transfer from the executor, or transmission application with consent | Nominal duty |
| Beneficiary taking more than the will gives | Transfer, with a valuation | Ordinary rates may apply on the extra portion |
Capital gains tax is a separate question for your accountant. CGT does not usually apply at the time you inherit a home. An inherited home may qualify for a CGT exemption if the relevant conditions are met; for the usual two-year rule, settlement has to happen within two years of the death, unless an extension applies. The detail is on the ATO page on capital gains tax on inherited property. Get advice from your accountant before the property is sold, not after.
Can you transfer property into a family trust?
Yes. People do it for asset protection or for estate planning. The paperwork is simple. The cost is not. Moving a property into a family trust or a company, or back out again, has no family exemption: duty is assessed on market value, the lender has to approve the new owner, and capital gains tax can apply.
Revenue NSW charges transfer duty on the higher of what was paid and what the property is worth. Transfer it for nothing and duty is assessed on the full market value. Because you are not at arm’s length, Revenue NSW will want a formal valuation rather than your own estimate, and the duty is due within three months. Our guide to stamp duty in NSW explains how duty is worked out, and our guide to transferring property between family covers gifts.
Two more things bite after the transfer. Land held by a family or discretionary trust is usually a special trust for land tax. A special trust does not receive the land tax threshold, so land tax can start from the first dollar of land value. And a discretionary trust whose deed does not meet the foreign-beneficiary exclusion requirements can face foreign-person surcharges on residential property, subject to the exemptions that apply. Revenue NSW explains both on its pages on surcharge purchaser duty for trusts and how trusts are assessed for land tax.
Putting a home into a trust is a tax decision first and a conveyancing job second. Get the tax part right with your accountant and a solicitor before anyone prepares a transfer.
Can you transfer property to a company, or into your SMSF?
To a company
A gift or transfer to your family company, like one to a trust, generally attracts duty on its dutiable value unless a specific exemption or concession applies. Expect formal evidence of value because the parties are related, and the lender has to assess the company as the new owner. If a foreign person holds a substantial interest in the company, a surcharge applies as well. Capital gains tax can apply to you as the person transferring, so the accountant comes first here too.
Into your SMSF
The $750 concession, at the time of writing, may apply under section 62A of the Duties Act 1997 to an eligible transfer from members to their SMSF trustee or its custodian. It needs the statutory conditions to be met: the property is held to provide retirement benefits, the membership or segregation and proportional-interest tests are satisfied, and the fund meets the complying-fund requirements in section 62A. Otherwise full duty on market value applies. The Revenue NSW page on self managed super funds sets out the conditions.
The duty concession is the easy part. The harder question is whether the fund may take the property at all. That is superannuation law. The sole purpose of an SMSF is to provide retirement benefits to its members. Other than in very limited circumstances, a fund cannot acquire assets from its members or other related parties, which in practice usually rules out the family home. The rules are on the ATO page on your obligations as an SMSF trustee. Ask your accountant or financial adviser, not your conveyancer.
Who can do this work?
In NSW, both licensed conveyancers and solicitors can run a property matter from start to finish. A solicitor is needed for the work outside a conveyancer’s licence, such as probate proceedings, creating or varying a trust, or forming a company. Some of the property transfers that go with those can be handled by a licensed conveyancer. Titlespace has both in the same team, so your matter does not have to move firms if it turns out to need a solicitor.
We prepare the transfer, lodge it with the land registry, deal with your lender and confirm the duty position with the revenue office before anything is signed. What we do not do is disputes: if a matter heads for court, we tell you early and point you to a litigation lawyer. We do not give tax, estate planning or financial advice either. Your accountant and adviser sit alongside us for those.
What does this mean for your transfer?
None of this has to happen at once. The order is usually the same, and the first two steps can wait until you feel up to them:
- Get a title search, and check whether the owners were joint tenants, tenants in common, or one person alone.
- Get the death certificate.
- Ask whether probate or letters of administration is needed, and apply early if it is.
- Check the title for a mortgage or a caveat and deal with the lender first.
- If the plan is a trust, a company or an SMSF, do not sign a transfer until the duty and tax advice is in writing.
The transfers that go wrong are the ones where a form was signed before anyone checked the title, the grant or the duty. Get the order right and the rest is paperwork, at your pace.
Titlespace is a conveyancing law firm based in Sydney acting for buyers, sellers and transfers in NSW, VIC, QLD and the ACT. See our conveyancing for transfers page, the transfers section of conveyancing in NSW, or the short answers on our conveyancing FAQs.
Reviewed by Marc Ryckmans, Legal Practitioner Director, November 2026. Last updated November 2026. This article is general information about transferring property after a death, into a trust or to a company in NSW. It is not legal advice about your transaction.
The content of this blog post is intended as general information and should be considered broad guidance only. It does not constitute legal, financial, or tax advice and should not be relied upon as such. Every property transaction is different, and we recommend seeking personalised advice from a qualified professional before making any investment or legal decisions.
Questions people ask about transferring property after a death
Do you need probate to transfer property after a death in NSW?
It depends on how the property was held. If the owners were joint tenants, no. The home passes to the survivor automatically, and the survivor lodges a notice of death with NSW Land Registry Services, supported by the death certificate. If the person owned the property alone, or held a share as a tenant in common, a grant is generally needed: probate where there is a valid will, or letters of administration where there is not. The land registry asks for the grant with the transmission application, and a death certificate on its own is not accepted. The NSW Government page on getting a grant of probate or letters of administration explains the application.
Can a property be transferred before probate is granted?
Not where the property was in the deceased person’s name alone or held as a tenant in common. The transmission application that moves the property through the estate has to be supported by probate or letters of administration, so the land registry will not register the executor or the beneficiary until the grant exists. The exception is a joint tenancy, where no grant is needed because the property passes to the survivor by survivorship. If a sale is planned, the executor usually needs the grant before settlement can happen, so applying early matters more than most people expect.
What is the difference between a notice of death and a transmission application?
A notice of death is for joint tenants. The surviving owner lodges it to have the deceased owner’s name removed from the title, with the death certificate as evidence, and no probate and no duty are involved. A transmission application is for property that forms part of the estate: a sole owner’s property, or a tenant in common’s share. The executor or administrator usually lodges it, supported by probate or letters of administration, to be registered as owner and then transfer the property to the beneficiary; a beneficiary can also apply to be registered directly, with the executor’s consent. To know which one you need, look at the title, not the will. A title search is the first step.
How long does a transmission application take?
Most of the waiting is for the grant, not for the land registry. The Supreme Court of NSW publishes its current probate processing times, and they move with the number of applications the registry is handling. Once probate or letters of administration are in hand, the transmission application and the transfer to the beneficiary are lodged electronically, and the duty on a transfer that follows the will is nominal, so that part is usually quick. What slows it down is a mortgage on the title, a caveat, or beneficiaries who want to divide things differently from the will.
Is it worth putting property in a family trust?
That is a question for your accountant and a solicitor, and the honest answer is that it depends on why you want to do it and what it costs you. In NSW there is no family exemption for a transfer into a trust: duty is assessed on the market value of the property, Revenue NSW will want a formal valuation, and capital gains tax can apply to you as the person transferring. A family or discretionary trust is usually a special trust for land tax, so it does not get the land tax threshold, and a discretionary trust that does not meet the foreign-beneficiary exclusion requirements can face surcharges on residential property, subject to exemptions. Revenue NSW explains how it calculates duty on its page on calculating transfer duty. Get the advice in writing before anyone prepares a transfer.
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