Private ruling: Absolute entitlement
Date of advice: 13 May 2019
Published: June 2019
Ruling period: 01/07/2018 to 30/06/2019
Date scheme commenced: 1 August 2013

Ruling: Q1: Was the client absolutely entitled to the property as a beneficiary, against the trustee of the Estate? | A1: Yes. It is accepted that there was a vested, indefeasible and absolute interest in the property. There was a sole beneficiary of the deceased estate and considered the property his own, and all parties treated it as such. Therefore, they were absolutely entitled to the property as against the trustee.

Relevant facts and circumstances: The deceased and pre deceased spouse resided in their main residence until they passed. The property was their main residence and has not used for income producing activities. The property was less than two hectares in size. The will appointed one executor. The only child of the deceased resided with them prior to their passing. Probate was granted, however, legal title to the property remained in the name of the deceased. The dwelling remained main residence of the deceased’s child until their passing in 2017. The property has not been used to produce assessable income. The executor for the deceased’s child estate also acted for deceased’s estate and all liabilities and debts associated with the estate have been paid. The contract to sell the dwelling was entered into in 2018, with settlement occurring in 2019, within two years of their passing.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 104-10 | Income Tax Assessment Act 1997 section 106-50 | Income Tax Assessment Act 1997 section 118-195 | Income Tax Assessment Act 1997 section 128-15 | Income Tax Assessment Act 1997 section 128-20