I am due to receive a property under a will. Do I have to pay stamp duty?

If you are due to inherit a property under a Will, one of the main concerns that may be on your mind is will you have to pay stamp duty?

The answer: it depends on the specific circumstances.

If the Will specifically gifts an entire property solely to you, then you will not have to pay stamp duty, as this falls under the “devise in a Will” stamp duty exemption. However, you will still have to pay Titles Office fees (which might be a couple of hundred dollars).

Similarly, if you are granted the “residue” of an Estate under a Will, and the “residue” includes a property, then once again there will be no stamp duty payable, just Title’s Office fees.

Of course, if a property was gifted during lifetime, then the recipient would incur stamp duty, which is calculated based on the value of the property.

Alternatively, there are some situations where a gift of property under a Will may incur some stamp duty. For example:

If two beneficiaries are jointly gifted a property under a Will, and it is decided that the first beneficiary will take the whole property, and the second beneficiary will take cash (or other assets) instead, then stamp duty will be payable on the additional 50% of the property the first beneficiary receives.

This is because the Will only envisaged the first beneficiary receiving 50% of the property. As a result, the stamp duty exemption only applies to the transfer of 50% of the property, and stamp duty will be payable upon the other 50% of the value of the property. Titles Office fees will still be payable on the full value of the property.

If you think you may be gifted a property under a Will, talk to a lawyer at OFRM to confirm what your likely liability is for stamp duty. Alternatively, if you are thinking about including a gift of property in your Will, then talk to us to ensure your Will is structured appropriately for the best stamp duty outcome.

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