Dear Mrs Macaulay,
My mother purchased a property with my brother as tenants-in-common. However, I was the one who paid the deposit and made all payments for the property. I wanted to buy the property, but was unable to put my name on it at the point of sale. The property is fully paid off.
My mother passed away several years ago, but she left a will giving her share of the property to me. The will took a very long time to probate.
I want my brother to transfer his share of the house to me as the house is really mine, and he is willing to do this. But the lawyers do not know how to proceed in terms of payments to the Stamp Office for the transfer fee for the property to be in my name. They are saying that I need to pay the transfer fee at current value of the property on both my mother's share and my brother's share. I read somewhere that the transfer fee on my mother's share should be calculated at the time of her death. Is this correct? Also, could you advise how the transfer fees and any other fees are really calculated and the steps in which this is done? I am grateful for your response.
I understand that your are concerned about the payment of transfer tax which may be charged upon the transfer of your mother's registered share as a tenant-in-common of the subject property to you pursuant to her will, wherein she sought to rectify the ownership of it by giving it to you as her beneficiary. On this you say that your lawyers say that transfer tax is due at the present day's value. You, however, understand that, on this portion, it ought to be on the value at the date of her death.
You are right that it is chargeable on the value of the property at the time of her death. The Revenue Affidavit, which should be filed at the Stamp Commissioner's Office, should be completed showing the value of her estate at her death and the net value after deductions of her just debts upon her death. That is to say, any medical charges which had to be paid if she died in hospital, or shortly after medical treatment; and her funeral expenses, including costs of the refreshments following the funeral service.
Though the value of her property interest will be that at the time of her death, you will have to pay interest on the tax calculated on that figure from one year after her death until the date of the certificate of tax due, which should be paid up within the predicated period for payment. If not, interest will continue to run unless an extension is applied for and additional time is given without any increase of interest. It is better to pay before or at the due date.
On the issue of your brother's transfer to you of the half share registered to him, this is a straight transfer for love and affection as no money will pass from you to him in consideration of the transfer. The transfer tax on this transfer will be calculated at the time of the transfer — that is the present day value. This is quite different from the transfer by your mother's executors to you, which would be an Assent to Beneficiary by them to you. Your brother's is a Deed or Instrument of Transfer.
These separate processes can be done and submitted for assessment together with a cover letter explaining what they are, so that the relevant assessors are made aware on the face of it. They can also be sent to the Registrar of Titles Office together also — I would suggest with an accompanying letter — so the proper assessments of the fees can be done on the respective transfers and it is clear which respective sections therein would need to prepare the endorsements for registration on the title. Sending both in would save time for both to be done.
I hope I have assisted by clarifying the matter for you. Your lawyer can also attend upon the Stamp Commissioner and personally ensure that the two processes are handled as they ought to be.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.