When two or more people own property together in England and Wales, they can hold it in one of two ways: as joint tenants or as tenants in common. The distinction has significant implications for what happens to the property when one owner dies, and understanding it is essential for effective will and estate planning.
In this guide
Joint tenants explained
When property is held as joint tenants, all owners have equal rights to the whole property. There are no distinct "shares" - each owner owns everything together with the other owners.
The key feature of joint tenancy is the right of survivorship. When one joint tenant dies, their interest passes automatically to the surviving joint tenant(s). This happens outside the will and the estate - it cannot be prevented by anything written in a will.
Many married couples hold their home as joint tenants, which means when the first spouse dies, the survivor automatically becomes sole owner of the property.
Tenants in common explained
When property is held as tenants in common, each owner has a distinct share that belongs to them individually. These shares can be equal (50/50) or unequal (for example, 60/40 or 75/25).
Unlike joint tenancy, there is no automatic right of survivorship. When a tenant in common dies, their share forms part of their estate and passes according to their will (or the Rules of Intestacy if there is no will).
This gives each owner the freedom to leave their share to whoever they choose, whether that is the co-owner, children, or anyone else.
The practical difference
Consider a married couple who own their home worth £400,000:
- As joint tenants: When the first spouse dies, the survivor automatically becomes sole owner of the whole property, regardless of what the will says
- As tenants in common (50/50): When the first spouse dies, their 50% share (£200,000) passes according to their will - they might leave it to the survivor, to children, or place it in trust
Why does this matter for estate planning?
The way property is owned affects several important considerations:
Protecting children in blended families
In second marriages, many people want to ensure their children from a previous relationship ultimately inherit their share of the family home. Holding property as tenants in common allows you to leave your share in trust for your children while still allowing your spouse to live there.
Care costs planning
Holding property as tenants in common, combined with appropriate trust provisions, can sometimes help protect part of the property value if one owner needs care in later life. This is a complex area requiring professional advice.
Tax planning
Different ownership structures can have inheritance tax implications, particularly for larger estates. Again, specialist advice is important here.
How to find out how your property is owned
To check how you currently own your property:
- Look at your title deeds or the Land Registry title
- If there is a "restriction" stating that survivors cannot give valid receipt for capital money, the property is held as tenants in common
- If there is no such restriction, it is likely held as joint tenants
- Your conveyancer or will writer can help clarify this
Changing from joint tenants to tenants in common
If you currently hold property as joint tenants and want to change to tenants in common, you can do so by "severing" the joint tenancy. This involves:
- Serving written notice on the other owner(s)
- Notifying the Land Registry to add a restriction to the title
- The severance usually creates equal shares, but different proportions can be agreed
Severing a joint tenancy is a relatively straightforward process, and many will writers across Kent, including in Tonbridge and Sevenoaks, can assist with this alongside preparing your will.
Common mistakes
Common errors relating to property ownership include:
- Assuming your will can control jointly owned property (it cannot if you are joint tenants)
- Not checking how property is actually owned before making a will
- Failing to update ownership when circumstances change (for example, after divorce or when estate planning needs evolve)
Key takeaways
How you own property with others has significant implications for inheritance. Joint tenants share property with automatic survivorship; tenants in common have distinct shares they can leave in their will. Understanding this distinction is essential for effective estate planning, particularly in blended families or where protecting assets for future generations is important.
Frequently Asked Questions
What is the difference between joint tenants and tenants in common?
Joint tenants share equal ownership with a right of survivorship - when one dies, their share passes automatically to the survivor. Tenants in common own distinct shares that can be different sizes and can be left to anyone in a will.
Can I leave my share of a jointly owned property in my will?
Only if you own as tenants in common. Property held as joint tenants passes automatically to the surviving owner regardless of what your will says. To leave your share to someone else, you would need to sever the joint tenancy first.
How do I change from joint tenants to tenants in common?
You can sever a joint tenancy by serving written notice on the other owner(s). This converts the ownership to tenants in common, usually in equal shares. The Land Registry will need to be notified of the change.
Which is better for estate planning: joint tenants or tenants in common?
It depends on your circumstances. Joint tenancy is simpler and ensures your partner inherits, but tenants in common offers more flexibility, particularly for blended families, protecting children from earlier relationships, or tax planning.
How do I find out how my property is owned?
Check your title deeds or the Land Registry. If there is a 'restriction' on the title mentioning that survivors cannot give valid receipt for capital money, the property is held as tenants in common. Otherwise, it is likely joint tenants.