The death of a loved one can raise many practical and legal questions, particularly when property is involved. One of the most common is:
“what happens to a jointly owned property when one of the owners dies?”
The answer depends largely on how the property was owned and, in some circumstances, what the deceased person’s Will says.
In England and Wales, jointly owned property is generally held in one of two ways: as joint tenants or tenants in common. The distinction is important because it can determine whether the deceased person’s interest passes automatically to the surviving owner or forms part of their estate.
What Is the Difference Between Joint Tenants and Tenants in Common?
The key difference is what happens to each owner’s interest when they die.
Joint tenants: the deceased owner’s interest generally passes automatically to the surviving joint owner or owners.
Tenants in common: the deceased owner’s share generally forms part of their estate and can pass under their Will or, if there is no valid Will, under the rules of intestacy.
Joint tenants
Where property is owned as joint tenants, the owners generally each own the whole property together rather than having separate identifiable shares.
The key feature is the right of survivorship.
If one joint tenant dies, their interest in the property generally passes automatically to the surviving joint tenant(s).
This means that the deceased person’s interest does not normally pass under their Will.
For example, imagine a married couple own their home as joint tenants. One spouse dies leaving a Will stating that their estate should pass equally to their children.
The deceased spouse’s interest in the jointly owned home would generally pass automatically to the surviving spouse rather than to the children under the Will.
This is why simply having a Will does not necessarily determine what happens to every asset you own.
Tenants in common
The position is different where property is owned as tenants in common.
Each owner has a distinct share in the property.
For example, two people could own a property as:
- 50% each;
- 60% and 40%; or
- another agreed proportion.
When one tenant in common dies, their share generally forms part of their estate.
Their share can therefore pass according to their Will or, if they do not have a valid Will, under the rules of intestacy.
This can be particularly important for unmarried couples, blended families and people who want their share of a property ultimately to pass to children or other beneficiaries.
Does the Will decide who receives the property?
Not necessarily.
This is one of the most important points to understand.
A Will generally deals with assets that form part of your estate. Where a property is held as joint tenants, the deceased person’s interest will generally pass by survivorship rather than under the Will.
By contrast, where a property is held as tenants in common, the deceased person’s share will generally form part of their estate and can pass under their Will.
This means that the way your property is owned can be just as important as the wording of your Will.
What happens to the mortgage?
If the property has an outstanding mortgage, the death of one owner does not necessarily mean that the mortgage simply disappears.
The position will depend on the mortgage arrangements, whether there is any relevant life insurance or mortgage protection and the financial circumstances of the surviving owner or estate.
The lender should be notified of the death, and appropriate advice should be obtained.
If the surviving owner is unable to maintain the mortgage payments, this can create additional issues that need to be addressed promptly.
Does the surviving owner need probate?
Where a property is owned as joint tenants, the deceased person’s interest generally passes automatically to the surviving owner.
However, there may still be administrative steps required to update the Land Registry records and provide evidence of the death.
The precise requirements will depend on the circumstances and the way the property is registered.
Where the deceased owned the property as a tenant in common, their share forms part of their estate and may need to be dealt with as part of the estate administration.
A Grant of Probate or Letters of Administration may therefore be required depending on the wider circumstances of the estate.
What happens to a tenant in common’s share after death?
If the deceased owned a distinct share of the property as a tenant in common, the personal representatives will generally need to consider that share when administering the estate.
The deceased person’s share may pass to:
- A spouse or civil partner;
- Children;
- Other family members;
- Friends;
- Charities; or
- Other beneficiaries named in the Will.
The personal representatives may then need to consider whether the property should be sold, transferred or retained, depending on the terms of the Will and the circumstances of the beneficiaries.
What if the Will leaves the property to someone else?
This is where matters can become more complicated.
Suppose a couple own a property as tenants in common. One owner dies and their Will leaves their share of the property to their children.
The surviving owner may continue to own their own share, but the deceased person’s share may now belong to the beneficiaries of the estate.
This can create practical questions about whether the property should be sold, whether one party can buy out the other beneficiaries and how the property should be managed.
Early legal advice can help prevent disagreements and ensure that everyone understands their legal position.
What if there is no Will?
If someone dies without a valid Will, they are said to have died intestate.
The rules of intestacy determine who inherits the estate.
However, it is important to remember that the rules of intestacy do not necessarily determine what happens to a jointly owned property in the first place.
If the property was held as joint tenants, the deceased person’s interest will generally pass automatically to the surviving owner.
If the property was held as tenants in common, the deceased person’s share will generally form part of their estate, and the intestacy rules may determine who inherits it.
This is one of many reasons why understanding the ownership of your property is important when considering estate planning.
Can joint ownership be changed?
Yes, in certain circumstances, property owned as joint tenants can be severed, meaning that the owners become tenants in common.
Severance can be relevant where someone wants their share of the property to pass under their Will rather than automatically to the surviving joint owner.
However, severing a joint tenancy is an important legal step and should not be undertaken without understanding the consequences.
For example, it can have implications for:
- Estate planning;
- Inheritance;
- Relationship breakdown;
- Tax planning;
- Beneficiaries; and
- The eventual sale or transfer of the property.
Our Private Client Team can advise you if you are considering changing the way your property is owned.
What happens to a jointly owned property when an unmarried partner dies?
Joint property ownership can be particularly important for unmarried couples.
Unlike married couples and civil partners, unmarried partners do not have the same automatic inheritance rights under the intestacy rules.
If an unmarried couple own a property as tenants in common, the deceased person’s share may pass according to their Will or, if there is no Will, under the intestacy rules.
This can result in an outcome that does not reflect what the couple intended.
For example, someone may assume that their partner will automatically inherit their share of the property, only to discover that the legal position is more complicated.
Proper estate planning can help unmarried couples understand and address these risks.
Jointly owned property and estate planning for blended families
Blended families can also benefit from careful estate planning.
For example, someone may have children from a previous relationship and also have a current spouse or partner.
They may want their surviving partner to be able to remain living in the family home while ultimately ensuring that their share passes to their own children.
Simply owning the property jointly may not achieve the intended outcome.
Depending on the circumstances, different estate-planning options may be available, including different forms of property ownership, carefully drafted Wills and, in appropriate cases, trusts.
Professional advice is particularly important where there are competing interests between a surviving partner and children from a previous relationship.
What should you do after the death of a joint owner?
If someone you know has died and they jointly owned property, it is important to establish:
- How was the property owned?
- Was it held as joint tenants or tenants in common?
- Was there a valid Will?
- Was there a mortgage?
- Who are the beneficiaries?
- Is probate required?
- Are there any inheritance tax considerations?
- Does the Land Registry need to be updated?
These questions can help establish what needs to happen next.
You should also avoid making assumptions about ownership simply because someone was married, living together or contributing towards the mortgage. The legal position depends on the circumstances and the relevant documentation.
Need advice about Jointly Owned Property, Probate or Estate Planning?
Dealing with a property after someone dies can be complicated, particularly where there are multiple beneficiaries, a mortgage, a blended family or disagreement between family members.
At Rose & Rose Solicitors LLP, our Private Client Team can provide advice on the legal and practical issues that arise following a death.
We can assist with:
- Probate and estate administration;
- Identifying and dealing with jointly owned property;
- Reviewing Wills and estate-planning arrangements;
- Advising executors and personal representatives;
- Advising beneficiaries;
- Inheritance Tax matters;
- Transfers and sales of estate property;
- Trusts and estate planning;
- Court of Protection and deputyship matters where appropriate; and
- Disputes concerning estates and inheritance.
We can also help you plan ahead.
If you own property jointly, it is worth understanding whether you own it as joint tenants or tenants in common and considering whether your current arrangements reflect your wishes.
Planning ahead can make a significant difference
The death of a property owner can create significant uncertainty for those left behind.
Understanding how your property is owned, making a valid Will and reviewing your estate-planning arrangements can help reduce the risk of disputes and ensure that your wishes are properly considered.
If you are unsure how your jointly owned property would pass on your death, contact Rose & Rose Solicitors LLP today to discuss your Will, estate planning or probate requirements.
This blog post is not intended to be taken as advice or acted upon. If you are seeking legal advice, please contact our team of solicitors.
