Stamp Duty Exemptions for Deceased Estates in South Australia

When a deceased's property is transferred as part of estate administration in South Australia, the question of stamp duty almost always comes up. The good news: most routine estate transfers are exempt. The bad news: the exemption isn't automatic — it must be correctly claimed, and some transfer arrangements attract full duty.

Understanding which transfers qualify under South Australian law can save an estate tens of thousands of dollars.

The Section 71A In Specie Exemption

Section 71A of the Stamp Duties Act 1923 (SA) provides the primary stamp duty exemption for deceased estate transfers. Under this provision, a transfer of real estate to a beneficiary entitled to it under the will is generally exempt from ad valorem stamp duty — provided the transfer is made in specie (in the form of the property itself, rather than as cash proceeds).

For this exemption to apply, the transfer must:

• Be made pursuant to a will or the intestacy rules
• Transfer the property directly to the person entitled to receive it under the will or the Act
• Not represent a deviation from the terms of the will as a result of a family agreement or variation

When these conditions are met, the Transmission Application lodged with Land Services SA is accompanied by documentation claiming the RevenueSA exemption. The correct exemption code must be entered in the dutiable transaction form.

What Does Not Qualify

The exemption has clear boundaries. The following situations typically attract stamp duty or require specific advice before proceeding:

Family agreements that vary the will. If beneficiaries agree among themselves to redistribute the assets differently from what the will specifies — for example, one sibling takes the house while another takes an equivalent cash payment — this variation may constitute a dutiable transaction. RevenueSA will assess duty on the transaction based on the market value of the property.

Non-beneficiary transfers. If a property is transferred to someone not entitled under the will or intestacy — for example, transferred directly to a buyer at settlement without first being registered in the executor's name — the transaction may be treated differently by RevenueSA.

Transfers to the executor as beneficial owner. A Transmission Application to the executor in their capacity as executor (to manage and sell the property) is generally not dutiable. But if the executor is also a beneficiary and is having the property transferred to themselves in their personal capacity in satisfaction of their entitlement, the transfer must be correctly characterised.

Claiming the Exemption with RevenueSA

To claim stamp duty exemption on a deceased estate property transfer, the executor or their conveyancer submits documentation to RevenueSA as part of the Land Services SA Transmission Application process.

This typically involves:

• The completed Transmission Application (Form TA)
• The Grant of Probate or Letters of Administration
• A statutory declaration or statement confirming the transfer is an in specie distribution to an entitled beneficiary
• Reference to the specific exemption provision (Section 71A)

RevenueSA will assess the documents and, if satisfied, endorse the transfer as exempt. If there is any ambiguity about the nature of the transfer, RevenueSA has the power to demand duty and penalties.

Interaction with Capital Gains Tax

Stamp duty and Capital Gains Tax (CGT) are separate obligations and one does not affect the other. Even where a transfer is stamp duty exempt, CGT implications may arise if the property was not the deceased's primary residence. The cost base for CGT purposes is generally the market value of the property at the date of death.

If the property was the deceased's main residence and it is sold within two years of their death (in most circumstances), the estate may qualify for a full CGT exemption. If it is retained longer or was not the main residence, CGT will apply on any increase in value from the date-of-death cost base.

CGT on deceased estates is a complex area, particularly for properties held for many years. A tax accountant should review the estate's property holdings before any transfers or sales are finalised.

Interstate and Overseas Property

The South Australian stamp duty exemption only applies to South Australian real estate. If the deceased owned property in another state or territory, the stamp duty rules of that jurisdiction apply separately. Victoria, New South Wales, and Queensland each have their own deceased estate transfer concessions, with differing scope and claiming processes.

If an interstate property is being transferred as part of a South Australian estate administration, the executor may need to engage a solicitor or conveyancer in the relevant state, and potentially reseal or register the SA grant in that jurisdiction.

Practical Tips

Get the characterisation right from the start. Whether a transfer qualifies for the Section 71A exemption depends heavily on how it is documented and what the transfer is purporting to achieve. Instructing a conveyancer with experience in deceased estate transfers in South Australia is worth the cost — stamp duty on an Adelaide family home can easily reach $20,000 to $40,000, so getting the exemption wrong is expensive.

Don't confuse the RevenueSA process with the Land Services SA process. RevenueSA assesses duty liability; Land Services SA processes the title transfer. These often happen simultaneously but are handled by different agencies and require different documentation.

The South Australia Probate Process Guide covers the complete property transfer sequence — from the Supreme Court Grant of Probate through the Land Services SA Transmission Application and RevenueSA duty exemption paperwork.

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