Property Transfers

Transfers between family members — parents to children, between siblings, into a family discretionary trust, or out to an individual beneficiary — are routinely treated as gifts by the parties. The State Revenue Office treats them as dutiable transactions assessed at market value. We obtain a contemporary valuation, apply any available concession, lodge the assessment through Duties Online and prepare the Transfer of Land for electronic settlement.

Transfers between spouses or domestic partners attract specific concessions. A transfer of a principal place of residence between spouses is exempt from transfer duty. Transfers pursuant to a Family Court order, consent order or binding financial agreement under the Family Law Act 1975 (Cth) are exempt under section 44 of the Duties Act, and capital gains tax rollover relief is generally available under Subdivision 126-A of the Income Tax Assessment Act. The exemption requirements are technical and must be documented correctly at the time of transfer.

Once probate or letters of administration have been granted, the executor or administrator can transfer estate property to the named beneficiary. A transfer 'in conformity with the will' to a beneficiary is exempt from transfer duty under section 42 of the Duties Act. Transfers to anyone else, or transfers accompanied by a payment from the beneficiary to the estate, attract full duty. We coordinate the property transfer with the probate file so the executor's distribution is documented correctly and the beneficiary takes registered title without double-handling.

Restructuring property holdings — moving a property from a company to a discretionary trust, redeeming units in a unit trust for the underlying land, transferring on a corporate reorganisation, or distributing trust property to a beneficiary on vesting — engages detailed duty and tax rules. Specific concessions exist for corporate reconstructions, beneficiary acquisitions and certain trust transactions, but each is tightly conditioned. We advise on structuring the transfer to access the correct concession, and we lodge the supporting evidence with the State Revenue Office.

Transfer duty is assessed on the greater of consideration and market value. A valuation is almost always required for non-arm's-length transfers. Capital gains tax applies on disposal regardless of whether the parties exchange money — market value substitution rules treat the disposal as if it were made for market value. GST may apply to commercial or development property. Foreign purchaser additional duty, vacant residential land tax and absentee owner surcharges may also apply depending on the parties and the property. We identify each of these issues at the outset and structure the transfer accordingly.

All Victorian land transfers are lodged electronically through PEXA. The transferor and transferee must complete verification of identity, execute a Client Authorisation, settle duty through Duties Online and lodge a transfer in registrable form with correct title references and party details. We act as the registered subscriber on PEXA, coordinate the digital signing workflow and manage settlement to registration.

The recurring mistakes on do-it-yourself or under-advised transfers are: assuming no duty because no money changes hands; ignoring capital gains tax on gifts; misdescribing parties or title references; failing to obtain a valuation to support a concessional assessment; using the wrong exemption category; and failing to coordinate the transfer with related estate planning, family law or commercial documents. We identify these risks at the outset and document the transfer so it withstands later SRO or ATO review.