Private ruling: Deceased estate
Date of advice: 18 December 2025
Published: 9 February 2026
Ruling period: Period ended DD MM YY
Date scheme commenced: DD MM YY

Ruling: Q1: Will the Commissioner exercise his discretion under section118-195 of the Income Tax Assessment Act 1997 to allow an extension of time for you to dispose of your ownership interest in the dwelling and disregard the capital gain or capital loss you made on the disposal? | A1: Yes.

Relevant facts and circumstances: On DD MM YY the deceased and Person A purchased a property at Address A (the property) as joint tenants. The property is less than 2 hectares. In YY the deceased and Person A divorced. It was agreed that the deceased would acquire the whole of Person A's interest in the property and Person A would retain their superannuation. On DD MM YY the divorce was finalised. The deceased tried several times to transfer the property into their name but was unsuccessful. They were profoundly disabled and although Legal Aid were able to assist in completing the necessary Statutory Declaration, they could not assist with the transfer. The cost of arranging for interpreters to deal with Land Registry was a barrier for them. On DD MM YY the deceased executed a Statutory Declaration confirming they were the absolute owner of the property. On DD MM YY Person A executed a Statutory Declaration confirming that the deceased was the absolute owner of the property. At one point between YY and YY the deceased advised their child Person B that the title to the property had been 'sorted out'. On DD MM YY the deceased passed away intestate. They were survived by two children, Person B and Person C who are the persons entitled in the distribution of the Estate. Person B and Person C are estranged. The property was the deceased's main residence at the time of their death and was not being used to produce assessable income. On DD MM YY a Covid restricted funeral was held. On DD MM YY Person B sent a message to Person C requesting a copy of the death certificate as Person C had been the notifier for the deceased's passing. Person C replied advising they had sent it the previous week. On DD MM YY there was email communication between Person B and Person C regarding transfer of the registration for the deceased's car. Person C provided a photo of the death certificate and advised they would provide a certified copy by mail. On DD MM YY Person C emailed Person B to suggest they contact the Public Trustee. Person B subsequently contacted the NSW Trustee and Guardian who advised they that no Will had been lodged with them. On DD MM YY Person B telephoned Probate Sydney and advised Person C of the call. On DD MM YY Person B again telephoned the NSW Trustee and Guardian to discuss the situation. On DD MM YY Person B telephoned Unified Lawyers. In Early YY Person C searched the property for a Will without success. Person C believed that NSW Trustee and Guardian would take the case and administer the estate. On DD MM YY Person B contacted the National Probate and Estates Group. On DD MM YY Person C sent a message to Person B about having identified that their estranged parent Person A remained on the title of the property. On DD MM YY Person C sent a message to Person B regarding their conversation national Probate who had advised that probate might not be required as there were minimal assets. On DD MM YY Person C told Person B about the statutory declarations their parents had signed regarding ownership of the property in the divorce settlement. On DD - DD MM YY Person C attended the property to find the original statutory declarations without success. On DD MM YY Person C provided Person B with a copy of a YY letter from Legal Aid to the deceased regarding their request for help in transferring the property. On DD MM YY Person B again asked Person C for a certified copy of the death certificate. Person C replied to advise they had posted it. On DD MM YY Person B sent a message to Person C to advise that they still had not received the death certificate. On DD MM YY Person B lodged an application for a copy of the death certificate. They received it on DD MM YY. In MM YY Person A became aware they were the registered proprietor of the property, having acquired the deceased's share under survivorship. In MM YY Person B appointed solicitors Law Firm A to act on their behalf to obtain Letters of Administration. An application for Letters of Administration was prepared but not filed because Person C could not be located to provide their consent to the application. In MM YY Person B appointed Law Firm B to act on their behalf to obtain Letters of Administration. In MM YY Person A advised Centrelink about their name still being on the title of the property. This meant that they and their current spouse were over their asset limit for their pension and this resulted in a re-assessment to their entitlement to a number of benefits. In MM YY declined to participate in the process of applying for letters of administration. On DD MM YY Person B engaged Law Firm C to act on their behalf with respect to obtaining Letters of Administration and preparing and finalising a Deed of Family Arrangement with Person A regarding the property. Person B changed firms because the previous ones lacked experience in Wills and estates. Between MM YY and MM YY there were negotiations with solicitors acting for Person A regarding the legal and beneficial ownership of the property. Person A and their current spouse had ended up with considerable debt with Centrelink and other related services due to the title of the property still being in their name. Person A wanted compensation for this. On DD MM YY an application for Letters of Administration was filed with Supreme Court of New South Wales. On DD MM YY a requisition was raised by Supreme Court of New South Wales. In MM YY a response to the requisition was filed with Supreme Court. On DD MM YY Person B filed a Statement of Claim in the Supreme Court seeking orders with respect to the property. On DD MM YY Letters of Administration were granted to Person B by the Supreme Court. On DD MM YY Person A filed a statement of Cross Claim in the Supreme Court. On DD MM YY orders were made by the Supreme Court following the execution of a Deed of Family Arrangement. On DD MM YY the title of the property was transferred to Person B as executor of the estate. On DD MM YY a contract of sale was exchanged for the property. On DD MM YY settlement on the property took place.

Relevant legislative provisions: Income Tax Assessment Act 1997 Section 118-195