Updated 23 October 2026
Wills - Potential Problem #20: Not Considering Jointly Held Property
Your will cannot necessarily distribute every asset with your name on it. A property held as joint tenants will ordinarily pass to the surviving owner, and joint bank accounts commonly operate through survivorship too. Those assets may therefore sit outside the estate available for distribution under your will.
However, ownership needs closer examination when there are trusts, disputed contributions or different intentions behind the arrangement. The registered title is essential evidence, but legal ownership and beneficial ownership can differ. A useful estate plan starts by checking what you actually own, how you own it and what happens when an owner dies.
1. Joint tenancy and tenancy in common
Joint tenancy carries a right of survivorship. When one joint tenant dies, the surviving joint tenant or tenants ordinarily become entitled to the property outside the deceased’s will. A clause leaving “my half of the house” to a child does not, by itself, defeat that right. NSW Trustee and Guardian explains this distinction, including its importance for blended families.
Tenants in common hold separate shares, which may be equal or unequal. The deceased’s share ordinarily forms part of their estate and passes under their will, or intestacy rules if there is no effective testamentary disposition. The surviving co-owner keeps their own share.
Obtain a current title search rather than relying on a rates notice, family recollection or the fact that both names appear on a mortgage. Legal Aid NSW’s guidance on assets and debts explains how a title search identifies the registered ownership arrangement.
This also affects the practical value of gifts. Leaving children equal percentages of your estate does not give them those percentages of assets passing by survivorship. Identify which assets will actually be available to satisfy specific gifts and the residue, and check that your intended provision for each beneficiary remains workable.
2. Christine on checking what is in the estate
I always stress that we need to understand the ownership before deciding what the will should say. A home held as joint tenants and money in a joint bank account will typically pass to the survivor. Clients need to understand that these assets may not be in the estate pool their executor can divide.
I also explain that the title may not answer every question. A property can be held as joint tenants in law but as tenants in common in equity because of the nature of the transaction. We need to look at the purchase documents, financial arrangements and evidence of what the parties intended.
My point is to get those questions answered while everyone can still explain the arrangement. It is much harder for a family to reconstruct what was intended after someone has died.
3. Joint bank accounts need their own review
Banks commonly treat the balance of a joint savings or transaction account as belonging to the surviving account holder. IMB’s deceased-account guidance expressly describes survivorship, while CommBank explains how its joint accounts continue after a holder dies. Check the particular bank’s terms, account type and notification requirements.
The bank’s contractual obligations do not necessarily resolve competing beneficial claims between the survivor and the estate. An account opened to help a parent pay bills may require examination of the source of the money and whether a gift was intended. Having authority to operate an account, including under a power of attorney, does not itself make someone a joint owner.
In Russell v Scott (1936), an aunt funded a joint account with her nephew. Evidence established that she intended him to receive the balance remaining at her death. The High Court upheld his beneficial entitlement by survivorship. The decision illustrates why evidence of intention matters; it does not establish that every surviving account holder can retain disputed funds.
4. When equitable ownership differs from the title
Legal ownership identifies the registered proprietors. Beneficial ownership concerns who is entitled to enjoy the property or its value. A trust may mean the registered owners hold property for themselves in different shares, or for someone else. Where beneficial interests are held as tenants in common, the deceased’s beneficial share may remain an estate asset even though legal title passes to the survivor.
Calverley v Green (1984) concerned a couple who bought a Baulkham Hills home as registered joint tenants. One provided the deposit, while both undertook liability for the mortgage used to purchase the property. Following their separation, the High Court recognised beneficial interests as tenants in common reflecting their purchase contributions. The precise proportions required agreement or further determination.
Although this was a property dispute rather than a probate case, it shows why the underlying transaction matters. Joint mortgage liability counted towards the purchase contributions; subsequent repayments did not automatically alter the beneficial shares.
There is no universal rule that paying more gives someone a larger equitable share. In Bosanac v Commissioner of Taxation (2022), the High Court emphasised the evidence of the parties’ objective intentions. Agreements, the purpose of the purchase, gifts and the surrounding circumstances need careful assessment.
5. Changing the arrangement before death
If survivorship conflicts with your intended gifts, seek advice about whether the joint tenancy should be severed during your lifetime. Severance can turn the relevant interest into a tenancy in common. Merely signing a will that gives the property to someone else does not ordinarily achieve this.
The appropriate documents and registration requirements depend on the ownership and proposed transaction. A change should be considered alongside your mortgage, any trust or co-ownership agreement and your partner’s housing needs. Changing ownership can also have tax or duty consequences depending on what is being changed.
Severance is not suitable for everyone. A survivor may need secure accommodation, while children from an earlier relationship may need provision. Discuss whether a properly drafted right of residence or testamentary trust would help achieve those objectives, rather than assuming a change of title resolves the whole plan.
6. What the executor and survivor need to do
For ordinary joint-tenancy land, a Notice of Death updates the register to reflect survivorship. The Supreme Court’s administration guidance explains that a grant is not required solely for land passing to a surviving joint tenant. Other assets may still require probate or letters of administration.
The executor should record jointly held assets even where they are not available for distribution. The Court’s probate checklist distinguishes disclosure of joint-tenancy property from the estate valuation. Survivorship also does not erase a mortgage or other secured liability.
Where beneficial ownership is disputed, preserve purchase records, bank statements, agreements and correspondence before transferring or distributing disputed assets. The survivor’s name appearing on the account or register does not justify ignoring a properly raised trust claim.
7. Survivorship does not exclude every estate claim
NSW’s notional estate provisions can, in appropriate circumstances, bring property passing outside the estate within reach of a family provision order. Part 3.3 of the Succession Act 2006 includes circumstances involving a failure to sever a joint tenancy.
This requires a court order and satisfaction of the statutory conditions. It does not automatically make all jointly held assets part of the estate. Whether someone is eligible, whether adequate provision was made and whether a notional estate order is available are separate questions.
8. Review ownership and your will together
Bring title searches, account documents and any trust or co-ownership agreements to your estate-planning appointment. Explain who contributed funds and whether anyone was added to an asset for convenience. Review the arrangements after separation, remarriage, refinancing or a significant change in family circumstances.
For the practical administration steps, see our guide to joint assets and probate in NSW. CM Lawyers’ wills and estates team can review ownership alongside your will and help identify where further conveyancing, trust or banking advice is needed. Contact us before assuming that a will clause alone controls the outcome.
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