Stamp Duty in Victoria - Exemptions with Deceased Estates
Authors: Chris Camillin, Partner and Jeremy Quah, Associate
24 November 2011
In Victoria (and in all other states) when you transfer assets you have to pay stamp duty. When you die, however, a transfer in accordance with your will and to your beneficiaries is generally exempt. This exemption was somewhat uncertain if the transfer of property is a transfer between the executor and a trustee. The State Revenue Office of Victoria (the “SRO”)has recently clarified its position in relation to that matter.
The exemption from paying duty in deceased estates is available under Section 42 (1) (a) of the Duties Act 2000 (the “Act”). Section 42 (1)(a) generally provides that there is an exemption from duty where there is a transfer of otherwise dutiable property by the legal personal representative of the deceased person (e.g. the executor) to beneficiaries, where such transfer is not made for valuable consideration, and is in accordance with the will of the Deceased.
The SRO has considered this issue and earlier this year clarified its view of the provisions. It is now clear that where there is a transfer from the executor of a testamentary trust to a trustee of that trust this transfer will be considered exempt from duty notwithstanding the fact that they are different people, so long as the transfer is made in accordance with the provisions the will of the deceased person and is not for valuable consideration. Furthermore where there is a transfer from the trustee of the testamentary trust to a beneficiary of that trust, this transfer will also be exempt from duty pursuant to section 36, 36A of the Act depending on the type of the testamentary trust and the circumstances of the transaction.
If any person is considering preparing their will , or if one has been appointed a executor or trustee of a testament trust, then they should seek appropriate advice in order to ascertain whether these exemptions apply to their circumstances.
Should you require any further information please do not hesitate to contact Chris Camillin or Jeremy Quah of Holman Webb Lawyers in Melbourne, or Roger Cornforth in Sydney.
Chris Camillin
Partner
T: +61 3 9691 1202
E: christopher.camillin@holmanwebb.com.au
Jeremy Quah
Associate
T: +61 3 9691 1205
E: jeremy.quah@holmanwebb.com.au
Roger Cornforth
Partner
T: +61 2 9390 8320
E: roger.cornforth@holmanwebb.com.au