Inheriting or being gifted property in Australia as a foreign person

Inheriting under a will

Treasury's key concepts note says that from 1 January 2021 a foreign person who acquires an interest in Australian land through a will is no longer exempt from the foreign investment framework. The acquisition can therefore be a notifiable action.

The key date is when the legal interest passes. The note says that is generally when the will's administration is complete and the title is transferred. Because a beneficiary may not know until then whether they will receive the property, they are expected to lodge an application within 30 days after the interest has been acquired. Treasury's example has John, a foreign person, registered as owner on 30 June 2021 after his sister's estate was administered. He has 30 days from that date, and could apply earlier if the executor confirmed he would receive the property.

Treasury encourages beneficiaries to contact it or the ATO as soon as they become aware of the interest, and says lesser penalties apply where a foreign person engages and self-discloses a potential breach.

What happens to the property

The outcome depends on what was left and who the beneficiary is.

• Vacant residential land. In Treasury's example, an approval for inherited vacant land is generally subject to the usual vacant land conditions, such as completing construction within four years. See the vacant land guide.
• An established dwelling. Treasury's example says this will generally not be approved unless an exception applies. Where there is no exception and the acquisition is considered contrary to the national interest, the guidance says the person would generally be required to dispose of the interest within six months of acquiring the legal interest. The exceptions are set out in the established home ban guide.
• A beneficiary who is not a foreign person. A citizen, a permanent visa holder or an eligible New Zealand citizen does not need approval. See who counts as a foreign person.

Intestacy and court orders

The devolution exemption would also likely cover beneficiaries of intestate estates, where assets are distributed according to the laws of succession. The key concept is that the interest cannot be acquired by voluntary action or agreement.

The same logic applies to divorce. Treasury says a property acquired under a Family Court order made under section 79 of the Family Law Act 1975 after a contested hearing would likely be devolution by operation of law. It says the exception does not apply to an arrangement formalised through a consent order, because the parties' wishes give it a voluntary element.

Gifts

Treasury's guidance says that absence of voluntariness is essential to devolution by operation of law. A gift is voluntary, so on that wording the exemption is unlikely to cover it. A gift of residential property to a foreign person is therefore likely to be treated as an ordinary acquisition that needs approval, which brings the ban on established dwellings into play. The ATO can confirm the position for a particular transfer. The State Revenue Office Victoria lists receiving a residential property as a gift among the transactions that attract foreign purchaser additional duty, and the other states' revenue offices can confirm their treatment.

State duty on inherited property

As read from the revenue offices in October 2026:

The Queensland Revenue Office says that if a transaction is exempt from transfer duty it is also exempt from AFAD. In New South Wales, Revenue NSW's example has two siblings each entitled to 50% of a $500,000 home under the will. A deed of family arrangement gives one sibling 100% in return for cash, so standard duty applies to the extra 50%. If that sibling were a foreign person liable for surcharge on a $250,000 share, the surcharge at 9% would be $22,500.

Revenue NSW also says that the trustee of an Australian testamentary trust is not a foreign trustee, even where the trust does not prevent a foreign person being a beneficiary, if the will was executed on or before 31 December 2020, the deceased died intestate before or within two years after 24 June 2020, or a court order varying the estate was made on or before 31 December 2020. A testamentary trust created under a later will may be a discretionary trust, and may be subject to surcharge purchaser duty if its trustee is treated as foreign.

Land tax after the inheritance

Owning the inherited property can bring annual land tax surcharges. The test dates differ.

• New South Wales: surcharge land tax is charged on residential land owned at midnight on 31 December, at 5% of land value.
• Victoria: an absentee owner at 31 December must notify the State Revenue Office before 15 January, and the 4% surcharge applies in the following land tax year.
• Queensland: liability is based on land owned at midnight on 30 June, and the Queensland Revenue Office says receiving an interest from a deceased estate may affect a beneficiary's land tax liability.

See the land tax surcharge exemptions guide.

Frequently asked questions

firbapproval.com.au is an independent guide. It is not affiliated with, endorsed by or connected to the Foreign Investment Review Board, the Australian Treasury or the Australian Taxation Office. We do not lodge or process applications. Applications are made to the ATO. General information only, not legal, tax, migration or financial advice.