119Basis of the election

#### 119 Basis of the election 119 Basis of the election > > (1) The price for which a spouse may elect to acquire property from the intestate estate (the exercise price) is the market value of the property as at the date of the intestate’s death. > > > (2) If, however, the spouse and the holder of a mortgage, charge or encumbrance over property that the spouse has elected to acquire agree to the assumption by the spouse of the liability secured by the mortgage, charge or encumbrance the exercise price is to be reduced by the amount of the liability (as at the date of transfer) secured by the mortgage, charge or encumbrance, but— > > > > > (a) the spouse takes the property subject to the mortgage, charge or encumbrance, and > > > > > (b) on the transfer of the property, the liability passes to the spouse and the estate is exonerated from it. > > > (3) The personal representative of an intestate must obtain a valuation from a qualified valuer of property forming part of the intestate estate if— > > > > > (a) a spouse elects to acquire the property, or > > > > > (b) a spouse asks the personal representative to obtain a valuation to enable the spouse to decide whether to elect to acquire it. > > > (4) The personal representative must give a copy of the valuation to the spouse and to the other beneficiaries entitled to share in the intestate estate. > > > (5) The requirement for a personal representative to obtain a valuation under subsection (3) may be waived with the consent of all the beneficiaries entitled to share in the intestate estate. > > > (6) Subject to the regulations, a reference in this section to a qualified valuer is a reference to a person who— > > > > > (a) has membership of the Australian Valuers Institute (other than associate or student membership), or > > > > > (b) has membership of the Australian Property Institute (other than student or provisional membership), acquired in connection with his or her occupation as a valuer, or > > > > > (c) has membership of the Royal Institution of Chartered Surveyors as a chartered valuer, or > > > > > (d) is of a class prescribed by the regulations. > > **s 119:** Ins 2009 No 29, Sch 1 \[4\]. Am 2015 No 48, Sch 1.29 \[2\] \[3\].