Joint Tenants vs Tenants in Common: Property Transfer After Death in Queensland

Whether a Queensland property bypasses probate entirely or forms part of an estate that requires Supreme Court involvement comes down to a single distinction on the title — one that most people never look at until someone dies.

Understanding the difference between joint tenancy and tenants in common is not just legal theory. It determines whether a surviving spouse can transfer the family home into their own name with a simple form lodged with Titles Queensland — or whether the property is frozen until probate is granted, with all the cost and time that involves.

The Core Distinction

Joint tenants hold a property as a unified whole. Neither owner has a distinct, divisible share that they can leave to someone else. When one joint tenant dies, the surviving owner automatically inherits the deceased's interest through the right of survivorship. This transfer happens by operation of law — it does not require the deceased's Will, it cannot be overridden by the Will, and it does not go through the estate.

Tenants in common each own a defined share of the property — typically 50/50, but it can be any ratio. Each owner can leave their share to whoever they choose in their Will. When a tenant in common dies, their share forms part of their estate and passes according to the Will (or the intestacy rules if there is no Will). The property does not automatically transfer to the surviving owner.

How to Find Out Which One Applies

The title register entry with Titles Queensland shows how a property is held. Look for the phrase "joint tenants" or "tenants in common" (the latter is sometimes shown with the respective shares, e.g., "as tenants in common in equal shares").

If you do not have the title documents, you can order a current title search through Titles Queensland. This is a paid search, but it is available online and delivers results quickly. The document will clearly show the tenure type and the names of the registered owners.

If the property was purchased many years ago or the ownership was set up by a solicitor without a detailed explanation, do not assume you know how it is held. A significant number of families assume "joint tenants" and discover when dealing with the estate that the property is actually tenants in common, requiring probate they had not planned or budgeted for.

Joint Tenants: How the Transfer Works

When a joint tenant dies in Queensland, the surviving owner needs to formally record the death and update the title register, but probate is not required.

The process involves lodging a Request to Record Death of Joint Tenant with Titles Queensland. This form requires:

• The names of both owners as they appear on the title
• The deceased's full name and date of death
• A certified copy of the official death certificate

Once lodged and processed by Titles Queensland, the property is registered solely in the surviving owner's name. The deceased joint tenant's interest is extinguished; the Will (if any) has no effect on this property.

This is a significant practical advantage of joint tenancy for couples who own property together. The family home does not get frozen during probate. The surviving partner can continue to live in, refinance, or sell the property while the rest of the estate is being administered.

Tenants in Common: How the Transfer Works

When a tenant in common dies in Queensland, their share of the property forms part of their estate. Transferring that share to a beneficiary requires:

1. Obtaining a Grant of Probate (if the deceased left a Will) or Letters of Administration (if there was no Will) from the Supreme Court of Queensland, unless the total estate falls below bank-specific small estate thresholds — which typically do not apply to real property

2. Lodging a Transmission Application with Titles Queensland, which is supported by the Court's grant and the death certificate

Until probate is granted and the Transmission Application is processed, the deceased's share of the property cannot be transferred. It cannot be sold. If the property needs to be sold and both shares are required to complete the transaction, the sale is blocked until the estate administration is resolved.

This creates a significant practical complication for co-owners who are not spouses — siblings who co-own an investment property, for example, or an elderly parent who owns a property with an adult child. If one dies unexpectedly, the other co-owner cannot unilaterally sell or refinance until the estate is administered.

When Probate Is Required for Property

Real property held as tenants in common in the deceased's name almost always requires probate regardless of the total value, because Queensland's land titles system requires a court-issued authority to transfer property from a deceased person's estate. Banks' small estate thresholds — which allow releasing bank accounts without probate for amounts between $20,000 and $50,000 — do not apply to real property.

If the deceased held real estate solely in their own name (not jointly held at all), probate is similarly required before the property can be transferred or sold.

The cost of applying for probate in the Supreme Court of Queensland includes a filing fee of $819.90 (as of 2025/26, indexed annually). This is in addition to the mandatory advertising fee in the Queensland Law Reporter (approximately $161.70) and any legal fees if a solicitor is engaged.

The Survivorship Rule and Deceased Estates: A Common Misconception

Many people believe that because a spouse is named as the beneficiary in a Will, they automatically inherit everything — including the family home. This is incorrect when the property is held as tenants in common.

The Will governs what happens to the deceased's estate. But the right of survivorship for joint tenants operates independently of the Will. Similarly, a property held as tenants in common will pass according to the Will — not automatically to the surviving spouse — and the estate administration process (including potentially probate) must occur.

Conversely, a joint tenancy property passes by survivorship even if the Will directs it elsewhere. The Will has no effect on joint tenancy property.

This is why understanding the tenure type of all property held by the deceased is one of the first tasks for an executor.

What Executors Should Do First

When administering a Queensland estate that includes real property:

1. Obtain a current title search for each property through Titles Queensland
2. Identify whether each property is held as joint tenancy, tenants in common, or in the deceased's sole name
3. For joint tenancy properties: prepare the Request to Record Death of Joint Tenant — this can be lodged promptly after the death certificate is obtained
4. For tenants in common or sole-name properties: assess whether probate is required and begin that process

The order matters. Joint tenancy transfers are simple and quick; they should be handled promptly as they do not affect the rest of the estate administration. Probate for the remainder of the estate can proceed in parallel.

The Queensland Funeral Laws & Consumer Rights Guide includes a complete estate administration checklist for Queensland executors — covering property transfers, probate requirements, bank thresholds, and the full sequence of tasks in the order they need to be completed.

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