Property Ownership Guide

Joint tenancy vs tenants in common: what happens when someone dies

How a property is co-owned makes a critical difference to what happens when one of the owners dies. With joint tenancy, the property passes automatically to the surviving owner. With tenants in common, the deceased's share passes through their estate.

Understanding which type of ownership applies is one of the first steps when dealing with an inherited property. This guide explains the differences, what happens on death under each arrangement, and how to check which applies to your property.

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What is joint tenancy?

Joint tenancy is a form of property co-ownership where all owners hold the entire property together, rather than each owning a specific share. The defining feature of joint tenancy is the right of survivorship. This means that when one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant or tenants.

Under a joint tenancy, no individual owner can point to a specific percentage of the property as "theirs." All owners have an equal and undivided interest. This is why joint tenancy is often described as the owners holding the property "as one."

Joint tenancy is the most common form of co-ownership for married couples and civil partners in England and Wales. It is straightforward and ensures that the surviving partner automatically becomes the sole owner of the property without any need for probate on that particular asset.

Key point: with joint tenancy, the property does not form part of the deceased's estate. It passes automatically to the surviving owner, regardless of what the will says.

What is tenants in common?

Tenants in common is a form of co-ownership where each owner holds a distinct, identifiable share of the property. These shares can be equal (such as 50/50) or unequal (such as 70/30), depending on what the owners have agreed. Each owner's share is entirely theirs to deal with as they wish.

The critical difference from joint tenancy is that there is no right of survivorship. When a tenant in common dies, their share does not automatically pass to the other owner. Instead, it forms part of the deceased's estate and is distributed according to their will or, if there is no will, according to the intestacy rules.

Tenants in common is commonly used by unmarried couples, friends buying together, business partners, or families where inheritance tax planning is a consideration. It is also used by couples in second marriages who want to ensure their share passes to their own children rather than to the surviving partner's family.

Key point: with tenants in common, each owner's share passes through their will or intestacy rules. The surviving owner does not automatically inherit the other's share.

Side-by-Side Comparison

Key differences between joint tenancy and tenants in common

Feature	Joint Tenancy	Tenants in Common
Ownership shares	Equal and undivided - no separate shares	Distinct shares - can be equal or unequal
Right of survivorship	Yes - property passes automatically to surviving owner	No - share passes through the will or intestacy
Can you leave your share in a will?	No - survivorship overrides the will	Yes - you can leave your share to anyone
Does the share go through probate?	No - it passes outside the estate	Yes - the share forms part of the estate
Can shares be unequal?	No - all owners have equal interest	Yes - shares can be any proportion
Common use	Married couples and civil partners	Unmarried couples, business partners, tax planning
Can one owner sell their share?	Not without severing the tenancy first	Yes - each owner can deal with their share independently

What happens when a co-owner dies?

The type of co-ownership determines exactly what happens to the property when one owner passes away. The practical difference is significant and affects everything from probate to inheritance tax to who ultimately inherits.

Joint tenancy: on death

Property passes automatically to the surviving joint tenant through the right of survivorship
The will has no effect on this property - survivorship takes priority
No grant of probate is needed to transfer ownership of this asset
The surviving owner registers the death with HM Land Registry using a certified copy of the death certificate
The property may still be included in the inheritance tax calculation of the deceased's estate

Tenants in common: on death

The deceased's share forms part of their estate and does not pass automatically
The share is distributed according to the will, or the intestacy rules if there is no will
A grant of probate (or letters of administration) is usually needed to deal with the share
The beneficiary who inherits the share becomes a new co-owner with the surviving original owner
The inherited share counts towards the deceased's estate for inheritance tax purposes

How to check whether a property is joint tenancy or tenants in common

If you are dealing with a property after someone has died, it is essential to establish the type of co-ownership before taking any other steps. There are several ways to find out.

Check the title register

Download the official copies of the title register from HM Land Registry (currently 3 pounds online). If you see a Form A restriction, the property is held as tenants in common. If there is no restriction, it is a joint tenancy.

Ask the conveyancing solicitor

The solicitor who handled the original purchase will have records showing how the property was set up. If you have the TR1 transfer form from the purchase, it will specify the type of co-ownership that was chosen.

Check the declaration of trust

If the owners signed a declaration of trust (sometimes called a deed of trust) when they purchased the property, this document will set out the type of ownership and the percentage share held by each owner.

Severing a joint tenancy

If a property is held as a joint tenancy and one or both owners want to change it to tenants in common, this is known as severing the joint tenancy. Severance can be done by either owner without the other's consent. It is a straightforward legal process but an important one, because it changes what happens to the property on death.

People commonly sever a joint tenancy for inheritance tax planning, to protect assets from care home fees, after a relationship breakdown, or to ensure their share passes to specific beneficiaries in their will. The process involves the following steps.

How to sever a joint tenancy

Serve a notice of severance

One joint tenant serves a written notice on the other stating their intention to sever the joint tenancy. This can be done by post or by hand. The notice does not require the other party's agreement.

Apply to HM Land Registry

Submit a Form A restriction application to HM Land Registry. This places a restriction on the title register preventing any sole proprietor from dealing with the property, protecting both parties' shares.

Update your will

Once the tenancy is severed, you should update your will to specify who should inherit your share. Without a will, the intestacy rules will determine who receives it.

Important: you cannot sever a joint tenancy after the other owner has died

Severance must be completed while both joint tenants are alive. Once one joint tenant has died, the right of survivorship has already taken effect and the property has passed to the surviving owner. If you are considering severance as part of tax planning, it is important to act promptly and not delay.

Tax implications of joint tenancy and tenants in common

The type of co-ownership has direct implications for inheritance tax (IHT) planning. Understanding these can help you make informed decisions about how property is held, particularly if the value of the estate may exceed the nil-rate band.

Inheritance tax

Under joint tenancy, the deceased's share of the property is included in their estate for IHT purposes, even though it passes automatically to the surviving owner. Transfers between spouses and civil partners are exempt from IHT, but this can create a larger tax liability when the surviving partner eventually dies.

With tenants in common, each owner's share is included in their estate. However, the flexibility to leave your share to a trust or to someone other than the surviving owner can provide opportunities for IHT planning that are not available with joint tenancy.

Capital gains tax

When an inherited property is sold, capital gains tax (CGT) may be due on any increase in value from the date of death to the date of sale. The type of co-ownership affects who is liable for CGT and on what proportion of the gain.

If you inherit a share as tenant in common, you are liable for CGT on the gain attributable to that share. The surviving original owner may not be liable for CGT on their own share if the property was their main residence. Professional tax advice is recommended, particularly for properties of significant value.

If you have inherited a property and are unsure about the tax implications, selling to a cash buyer like HouseBought4Cash can simplify the process. We can complete the sale quickly, helping you to crystallise the value and deal with any tax liability promptly, rather than watching the property's value fluctuate while you wait for a buyer on the open market.

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Frequently Asked Questions

Common questions about joint tenancy and tenants in common

Understanding property co-ownership can be confusing, especially during a bereavement. Here are answers to the questions we hear most often.

When one joint tenant dies, their share of the property passes automatically to the surviving joint tenant or tenants through the right of survivorship. This happens by operation of law and does not depend on the will or the estate. The surviving owner simply needs to register the death with HM Land Registry by submitting a certified copy of the death certificate. The property does not form part of the deceased's estate for distribution purposes, although it may still be relevant for inheritance tax calculations.

Yes. Any joint tenant can sever the joint tenancy and convert it to a tenancy in common without the agreement of the other owner. This is done by serving a written notice of severance on the other joint tenant and then applying to HM Land Registry to place a Form A restriction on the title. Once severed, each owner holds a distinct share (usually 50/50 unless otherwise agreed) and the right of survivorship no longer applies. Many people sever a joint tenancy as part of inheritance tax planning or after a relationship breakdown.

You can check by obtaining the official copies of the title register from HM Land Registry, which costs a small fee (currently 3 pounds online). If the property is held as tenants in common, there will be a Form A restriction on the title register stating that no disposition by a sole proprietor of the registered estate is to be registered except under an order of the court. If there is no such restriction, the property is held as joint tenants. Your solicitor can also confirm the position for you.

Yes. When you hold property as tenants in common, your share forms part of your estate when you die. You can leave it to whoever you choose in your will, whether that is a spouse, child, friend, or charity. If you die without a will (intestate), your share passes according to the intestacy rules, which prioritise your spouse and then your children. This flexibility is one of the main reasons people choose to hold property as tenants in common rather than as joint tenants.

It depends on your circumstances and priorities. Joint tenancy is simpler because the property passes automatically to the surviving spouse without needing to go through probate for that asset. However, tenants in common offers more flexibility for inheritance tax planning, particularly for couples with children from previous relationships or those with estates that may exceed the nil-rate band. Many solicitors advise married couples to hold property as tenants in common and to use mirror wills that leave each share to the surviving spouse in the first instance, with children as secondary beneficiaries. You should seek professional advice tailored to your situation.

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