Executors: Keep the $100 Stamp Duty Concession on NSW Deceased Estates

30 September 26
Uncategorized

A qualifying transfer of property from a deceased estate in NSW is usually assessed at a fixed concessional transfer duty of $100 under Section 63, rather than full ad valorem duty. This applies only when the transfer is made under and in strict conformity with the deceased’s will, the rules of intestacy, or a court order. Private sales, informal beneficiary agreements or a contract for sale will usually void that concession and trigger full duty instead.

TL;DR:

  • Transfers strictly under and conforming to the will, intestacy rules, or court orders qualify for the $100 concession; informal agreements or side deals generally do not.
  • Proper documentation, including valuations and clear matching of transfer instruments to the will, is essential to maintain the concession and avoid full duty assessments.
  • The difference between a transmission application and a contract for sale determines whether the transfer attracts the concession or standard duty; the latter is assessed based on market value.
  • Revenue NSW requires specific documents such as death certificates, probate, will, and identity proof, and delays often occur due to incomplete lodgements or lack of proper evidence.
  • Once a property is transferred under the concession, any subsequent sale or transfer is subject to full market value duty, with no concession carried forward.
Simons George Legal
Get Clear Advice on Estate Transfers
Simons George Legal helps Sydney executors understand estate administration, contested matters and practical next steps for their circumstances.

Visit Simons George Legal

Table of Contents

What the Section 63 concession is and which instruments it covers

Section 63 of the Duties Act 1997 sets a fixed concessional rate for certain deceased estate transfers, and Revenue NSW confirms the fixed concessional duty is $100 where the transaction meets the section’s requirements. The logic is straightforward: the law does not want to tax the simple act of passing assets to the people already entitled to them under a will or the intestacy rules.

Three instruments commonly qualify. A transmission application vests property in the executor or administrator so they can deal with the estate, and this step attracts no duty at all under section 65(12), because no duty is chargeable on the vesting of dutiable property in a legal personal representative. A subsequent transmission to a named beneficiary, where the property passes directly to the person entitled under the will, generally qualifies for the $100 rate. A transfer by the executor to a beneficiary, executed to formally complete that entitlement, is treated the same way provided it mirrors what the will or intestacy rules already direct.

Liability for duty under the Duties Act rests with the person receiving the dutiable property, typically the beneficiary or the estate itself where the executor is completing the transfer. The instrument that records the transaction, whether a transmission application or a transfer, needs to match the entitlement set out in the will or the order that created it. Any gap between what the document says and what the will actually provides is where the concession tends to fall over, which is why Revenue NSW guidance places such weight on documentation and record keeping for variations or appropriations.

What the Section 63 concession is and which instruments it covers — overview diagram

Common scenarios: when the concession applies and when it does not

Most estates involve one of a handful of recurring situations, and the outcome usually turns on how closely the paperwork tracks the will.

  • A direct transfer of a named asset to the beneficiary identified in the will or under intestacy: the concession applies cleanly, since the transfer is made under and in conformity with the entitlement.
  • An appropriation in lieu of sale, where an executor allocates a specific asset to a beneficiary instead of selling it and dividing cash, can still qualify if the allocation matches the beneficiary’s proportional share and is properly documented.
  • A deed of family arrangement, where beneficiaries agree among themselves to redistribute assets differently from the will, carries real risk of being assessed at full ad valorem duty unless it is drafted and evidenced with care.
  • An informal or verbal agreement between siblings to “swap” who gets what is treated the same way as an undocumented variation, and Revenue NSW guidance is explicit that deviation from the will’s terms will usually attract full transfer duty unless it is captured as a properly evidenced appropriation.
  • A court order, such as a family provision order or a order made in estate litigation, that substitutes for or amends the will’s terms can still support the concession, because the transfer remains one made under conformity with a legally recognised instrument rather than a private arrangement between beneficiaries.

The appropriation scenario deserves particular attention because it sits closest to the line. Revenue NSW guidance notes that properly drafted appropriation documentation, tied back to the trusts in the will and supported by a contemporaneous valuation, can preserve the concession even where the will technically directs a sale. Without that paperwork, the same transaction can be reclassified as a dutiable dealing at market value. Our related guide on deceased estate tax obligations in NSW walks through how appropriations and family arrangements interact with broader estate tax issues.

Transmission vs contract for sale: why the document type changes duty treatment

Transmission versus contract for sale comparison

The difference between a transmission and a contract for sale is the single biggest factor in whether an estate transfer costs $100 or thousands of dollars. A transmission application is the mechanism by which property already owned by the deceased vests in the executor, and later in the beneficiary entitled to it. No money changes hands in the legal sense: the beneficiary is simply receiving what they were always going to receive under the will.

A contract for sale is a different animal entirely. It is a commercial transaction, with a purchase price, settlement terms and consideration passing between parties. Even when the “buyer” is a beneficiary of the same estate, a contract for sale is assessed on the dutiable value of the property, which is the higher of the price paid or the market value, exactly as Revenue NSW’s calculation rules set out for any other property sale in NSW.

Two examples illustrate the gap. If an executor formally transmits the family home to the sole beneficiary named in the will, that transfer is likely to attract the $100 concession. If instead the executor and a beneficiary sign a contract of sale, perhaps because the beneficiary wants to “buy out” a sibling’s share and the parties think a contract makes the arrangement cleaner, that document is assessed at full ad valorem duty on the property’s market value, because it is no longer a transmission under the will but a sale. The same trap catches beneficiaries who later sell the inherited property on the open market: that sale is a standard transfer duty transaction for the buyer, assessed at market value with no concession available, because the concession only ever applied to the original transfer from the estate. Executors weighing up whether to sell before or after transferring title should read our guide on selling estate property during probate before committing to a structure.

Documents, valuations and lodgement through eDuties and EDR

Revenue NSW will not apply the concession on the strength of a story. It wants documents that prove the transfer matches the will or the court order, and specific evidentiary requirements apply to every Section 63 claim.

  1. The death certificate, confirming the date and fact of death.
  2. The grant of probate or letters of administration, showing who has authority to deal with the estate.
  3. A full copy of the will, so Revenue NSW can check the transfer against its actual terms.
  4. The executed transmission application or transfer document itself.
  5. An inventory of the estate’s assets, particularly relevant where an appropriation is involved.
  6. Identity evidence for the beneficiary receiving the property.
  7. Any deed of family arrangement or court order that varies or confirms the distribution.

A formal valuation becomes necessary whenever an appropriation is used to satisfy a beneficiary’s share, since Revenue NSW needs independent evidence that the asset’s value matches what the beneficiary was entitled to under the will. Not every transaction can be processed the same way: routine transmissions and transfers that clearly match the will can often go through EDR (Electronic Duties Return), but variations, deeds of family arrangement and anything involving a life interest generally need to be lodged for manual assessment through eDuties, with full supporting evidence attached.

Incomplete lodgement is one of the most common causes of delay. Missing identity documents, an unclear inventory or a transmission application that does not match the probate grant will see Revenue NSW query the transaction, and in some cases reassess it at the full ad valorem rate while the missing evidence is chased down.

Pro Tip: Assemble every supporting document before lodging, not after; a query from Revenue NSW can add weeks to an otherwise straightforward transmission.

Timing, who pays, and when full transfer duty applies

Transfer duty liability arises on the liability date, generally the date the transaction is executed, and the Duties Act gives a three-month window from that date to lodge and pay. Revenue NSW’s guidance on calculating transfer duty confirms that duty is worked out on the dutiable value, being the higher of the consideration paid or the property’s market value, though for a qualifying Section 63 transfer that calculation is irrelevant because the fixed $100 rate applies regardless of the property’s worth.

The beneficiary or transferee receiving the property is the person liable to pay the duty, even where the executor arranges and lodges the transaction on the estate’s behalf. Missing the three-month payment window has real consequences: Revenue NSW applies interest on the unpaid amount and can impose penalty tax on top of that, calculated from the liability date rather than from when the transaction happened to be lodged.

The concession only ever covers the original transfer out of the estate. Once a beneficiary owns the property outright, any later sale, whether to a stranger on the open market or to a sibling under a private arrangement, is a fresh dutiable transaction assessed on market value using the standard transfer duty scale and calculator that Revenue NSW publishes for ordinary property sales. There is no carry-over of the $100 rate to a subsequent dealing, no matter how soon after the original transfer it happens.

Practical checklist for executors and beneficiaries

A methodical approach in the weeks after appointment does more to protect the concession than anything done later.

  1. Compile a full inventory of estate assets as soon as probate or letters of administration are granted, noting which assets are specifically gifted and which fall into the residue.
  2. Read the will carefully for specific bequests, life interests or trust provisions that affect how each asset should be transferred, since these change which instrument is appropriate.
  3. If an appropriation is being used to settle a beneficiary’s entitlement, draft a written appropriation plan before the transfer, showing how the allocated asset matches that beneficiary’s proportional share.
  4. Obtain an independent market valuation for any property being appropriated, dated as close as possible to the transfer.
  5. Lodge the correct instrument, either through EDR for straightforward transmissions or via eDuties for variations and family arrangements, with every supporting document attached.
  6. Retain copies of everything lodged, including correspondence with Revenue NSW, in case the transaction is later queried or audited.

Executors juggling multiple beneficiaries, blended families or assets that do not divide neatly often reach a point where legal advice becomes worthwhile rather than optional. That point usually arrives when a will’s wording is ambiguous, when beneficiaries want to vary the distribution informally, or when the estate holds property that needs to be appropriated rather than sold. A solicitor can confirm how a proposed transaction should be classified, which lodgement channel applies, and what valuation evidence Revenue NSW will expect, before the transfer is executed rather than after it has already been assessed at the wrong rate. Our estate administration checklist sets out the broader administration steps that sit around this process.

Pro Tip: Never rely on a verbal understanding between beneficiaries to justify a variation; put it in writing and have it valued before the transfer is lodged, not after.

Step-by-step guidance on calculating stamp duty for estate transfers

Working out what an estate transfer will cost starts with identifying the instrument. If the transfer is a transmission or transfer made strictly under the will, intestacy rules or a court order, the calculation is simple: the fixed $100 concessional rate applies regardless of the property’s value, so a modest unit and a multi-million-dollar house attract the identical duty.

Where the transfer does not qualify, either because it is structured as a contract for sale or because it involves an undocumented variation, the calculation shifts to the standard ad valorem method. Dutiable value is the higher of the price paid or the property’s market value, and Revenue NSW’s transfer duty rates and thresholds apply on a sliding scale, with a calculator available to estimate the amount payable.

The practical process is therefore: confirm which instrument applies, check that it strictly matches the will or order, and if it does not, obtain a market valuation and use the calculator to estimate the ad valorem duty before proceeding. Getting this sequence backward, lodging first and discovering the classification issue afterward, is what turns a $100 transaction into a full duty assessment with interest attached.

Impact of relationships on stamp duty obligations

The beneficiary’s relationship to the deceased does not change the availability of the Section 63 concession itself. A spouse, an adult child, a grandchild and an unrelated friend named in the will are all treated the same way for the purposes of the $100 rate, provided the transfer is made strictly under the will, intestacy or a court order. The concession is about the nature of the transaction, not the identity of the recipient.

Relationships matter more indirectly, through intestacy and family provision claims. Where someone dies without a will, the intestacy rules determine who is entitled to what, and a transfer made in accordance with those rules still qualifies for the concession in the same way a transfer under a will would. Where a family provision claim results in a court order altering who receives what, that order becomes the instrument the transfer must conform to, and the concession can still apply provided the transfer matches the order precisely. Disputes between siblings or blended family members over informal redistribution, by contrast, are exactly the scenario most likely to convert a concessional transmission into a fully dutiable transaction.

Timeframes for applying for exemptions or concessions after death

Revenue NSW’s guidance does not set a strict statutory deadline by which a Section 63 claim must be lodged after death, but practical timing pressures apply regardless. Once a transmission or transfer document is executed, the three-month payment window under the Duties Act begins running from the liability date, and that clock applies whether or not the concession is ultimately available.

The more useful discipline is to treat the concession as something to plan for early, rather than something to claim at the last minute. Obtaining probate, compiling the asset inventory and confirming how each asset will be distributed are all steps that should happen well before any transfer document is executed, because rushing a transmission through without the supporting paperwork increases the risk of a query or reassessment. Estates involving appropriations benefit particularly from early valuation evidence, since a valuation obtained months after the fact carries less weight than one dated close to the transfer itself.

Frequent mistakes and how specialist advice protects the concession

The errors that cost estates the most are rarely complicated. They are verbal agreements between beneficiaries that never make it into writing, valuations obtained after a dispute has already started rather than before, and transactions lodged through the wrong channel because nobody checked whether EDR was appropriate. Each of these turns a $100 transmission into a full ad valorem assessment, often for a fraction of what proper advice would have cost.

Specialist estate lawyers earn their fee by structuring appropriations correctly from the outset: matching the allocation to the will’s proportions, commissioning a timely valuation, and lodging through the channel Revenue NSW expects for that particular instrument. Simons George Legal offers a complimentary 30-minute consultation for exactly this reason, to assess an estate’s circumstances before a transfer document is signed rather than after Revenue NSW has already queried it.

— George

Preserving a stamp duty concession is one part of administering an estate. Contested wills, family provision claims and disputes between beneficiaries are another, and cost is often what stops people pursuing a legitimate claim. No Win, No Fee arrangements are available for eligible matters, with eligibility checked during a free initial consultation, removing the upfront cost barrier for people with a legitimate claim. If a dispute over an estate distribution is holding up a transfer or threatening the concession altogether, book a free case assessment with Simons George Legal to find out where the matter stands.

Simons George Legal

No Win, No Fee arrangements are subject to case eligibility and a written costs agreement. Liability limited by a scheme approved under Professional Standards Legislation.

This article is general information, not a substitute for advice from a qualified lawyer. Consult a qualified legal professional about your own circumstances before acting on anything here.

FAQ

How to avoid stamp duty in NSW on a deceased estate?

You cannot avoid duty entirely, but a transfer made strictly under the will, intestacy rules or a court order qualifies for the $100 concessional rate instead of full ad valorem duty. Keeping the transfer document identical to the will’s terms, and avoiding informal side agreements between beneficiaries, is what preserves that concession.

How much is real estate stamp duty in NSW for a deceased estate transfer?

A transfer of property from a deceased estate that meets Section 63 requirements attracts a fixed $100 concessional duty, regardless of the property’s value. Where the transfer does not qualify, duty is calculated on the dutiable value using Revenue NSW’s standard transfer duty rates.

How much is the stamp duty on trust deeds in NSW?

Duty treatment for trust deeds depends on the type of trust and the assets involved, and it sits outside the deceased estate concession discussed here. Anyone establishing or varying a trust as part of estate administration should get advice specific to that trust structure rather than assuming the $100 estate concession applies.

Does a beneficiary pay stamp duty when they later sell an inherited property?

Yes. The Section 63 concession only covers the original transfer from the estate to the beneficiary, and any later sale on the open market is a fresh transaction assessed at full transfer duty on market value, paid by whoever buys the property.

What happens if beneficiaries agree to swap assets informally?

An informal swap between beneficiaries, made without documenting it as a proper appropriation tied to the will, is treated as a deviation from the will’s terms. Revenue NSW guidance indicates this will usually be assessed as a standard dutiable transaction at full ad valorem duty rather than the $100 concession.

Call Our Team