Transferring property between family members looks simple because no agent or buyer is involved. In practice it raises duty, tax and lender questions that are easy to get wrong. Asset Conveyancing prepares and lodges family transfers in South Australia, Victoria, New South Wales, Queensland, Western Australia and Tasmania.
How do you transfer property to a family member?
You sign a transfer of land, have it assessed for duty, obtain any lender consent and lodge it for registration at the state land titles office, usually electronically through PEXA.
Duty is generally assessed on market value, not the price agreed between relatives, so a valuation is often needed. Our guide on transferring property between family members covers the background.
Can you add or remove a name from a property title?
Yes, but it is a transfer of an interest in the land, not an administrative change. Adding a partner transfers part of your interest to them; removing a co-owner transfers their interest to the remaining owner.
Duty is usually calculated on the value of the share that moves. Some states offer an exemption or concession for transfers of the family home between spouses; others do not. Also decide how the new owners will hold title (see co-ownership).
How is property transferred after separation?
Usually under family law court orders or a binding financial agreement. Most states exempt these transfers from duty, provided the documents meet the requirements of the relevant duties legislation.
The exemption is not automatic: the transfer must match the orders or agreement, and an informal arrangement between former partners generally does not qualify. Your family lawyer settles the terms; we prepare the transfer, deal with the lender, obtain the duty assessment and complete registration. A relationship breakdown rollover may also defer capital gains tax, which your accountant should confirm.
What happens when property is given as a gift?
A gift of land is still dutiable in most cases, assessed on market value, and for capital gains tax the giver is generally treated as having received market value. Before parents gift a share of a home to a child, consider whether it should be documented as a loan, and how it affects the giver’s pension and estate plan.
What happens to property when an owner dies?
It depends on how the property was owned. A joint tenant’s interest passes to the surviving joint tenant by survivorship. A tenant in common’s share passes under their will, through the executor.
Survivorship is completed by lodging an application with a death certificate to remove the deceased owner’s name, without probate for that interest. Transmission applies to a tenant in common’s share: the executor usually obtains probate, registers a transmission application, then transfers the share to the beneficiary or sells it. Transfers to beneficiaries under a will are often exempt from duty or charged a nominal amount, depending on the state.
What duty and tax apply to family transfers?
Transfer duty is a state tax, and the same transfer can be duty free in one state and fully dutiable in another. We confirm the position with the relevant revenue office, such as RevenueSA or Revenue NSW, before documents are signed. Capital gains tax is federal and depends on main residence status, timing and the reason for the transfer. Get your accountant’s advice on tax and pension effects before the transfer, not after.
Check the mortgage first. If the property is mortgaged, the lender must consent to any transfer. Removing a borrower usually means the remaining owner must refinance or be reassessed, and that approval can take longer than the legal work.
How should granny flat arrangements be documented?
In writing. Where an older family member pays money or transfers assets in return for a right to live in a home for life, a written agreement protects both sides if the family relationship breaks down, the home is sold or the owner dies, and can be relevant to tax and pension treatment. Our guide on granny flat interests covers the issues.
Common questions about family property transfers
Do I need a conveyancer to transfer property to a family member?
It is strongly recommended. The transfer must be correctly prepared, assessed for duty, consented to by any lender and registered. Errors can lead to extra duty, penalties or a rejected lodgement. Electronic lodgement through PEXA also generally requires a subscriber such as a conveyancer.
Is stamp duty payable when transferring to a spouse?
It depends on the state and the circumstances. Transfers under family law orders or a binding financial agreement after separation are exempt in most states. For spouses who are still together, some states exempt or discount transfers of the family home, while others charge duty on the value of the share transferred.
Can I sell my house to my child for less than market value?
You can, but duty is generally assessed on market value, not the reduced price, and for capital gains tax the sale is usually treated as happening at market value. The discount is effectively a gift, so consider your estate plan and any pension entitlements first.
Does a surviving joint tenant need probate?
Generally no. A surviving joint tenant takes the deceased owner’s interest by survivorship and applies to the land titles office with a death certificate to remove the name. Probate is usually needed only for property the deceased owned alone or as a tenant in common.