If you own a property with someone else, you will own it either as joint tenants or as tenants in common. The difference matters most when one of you dies, because it decides whether your share passes under your Will. This guide explains joint tenancy and tenancy in common, and how to change from one to the other. It also explains how to check which one you have.
What is the difference?
| Joint tenancy | Tenancy in common | |
|---|---|---|
| Shares | You own the whole property together, with no separate shares | Each owner has their own share, which can be equal or unequal |
| When an owner dies | The property passes automatically to the surviving owner(s) by “survivorship” | The deceased owner’s share passes under their Will, or under the intestacy rules if there is no Will |
| Does your Will control it? | No, not while another joint owner is alive | Yes, you can leave your share to anyone, including into a trust |
| Common for | Married couples and civil partners who want everything to go to each other | Unmarried couples, friends, business partners, second marriages and people planning Will trusts |
| Can you change it? | Yes, by severing the joint tenancy | Yes, but changing to a joint tenancy needs all owners to agree and a transfer at HM Land Registry |
Survivorship means a jointly owned property passes outside the Will. However, it does not mean the estate avoids probate. The estate may still need a grant of probate for other assets. Also, the property still counts for inheritance tax. GOV.UK has a short guide to joint property ownership.
Converting a tenancy in common into a joint tenancy
Some owners want to change from a tenancy in common to a joint tenancy, often so that the property passes straight to the survivor. Before doing so, bear in mind:
- all owners must agree
- the owners must transfer the property into their joint names as joint tenants, which involves a transfer deed and an application to HM Land Registry
- any Will gifts or trusts of your share will no longer work, so you may need to update your Will
- also, if your shares are currently unequal, you will be giving up that arrangement
However, this is conveyancing work, which A.D.E. Wills does not carry out. We can refer you to an appropriate professional. If we wrote your Will, we can update it for a fixed fee, or we can prepare a new Will.
Severing a joint tenancy
Severing a joint tenancy turns it into a tenancy in common. People often consider this when:
- they want to leave their share to someone other than the co-owner, such as children from an earlier relationship
- a couple is separating or divorcing
- they want to include a Life Interest Trust in their Will, which needs a share of the property to pass under the Will
One owner can sever, even without the other’s agreement, by serving a written notice of severance on the other owner(s). Then an application on Form SEV asks HM Land Registry to enter a Form A restriction, so the register shows that you now own as tenants in common.
A.D.E. Wills can sever a joint tenancy into a tenancy in common in equal shares. First we draft the Notice of Severance and Form SEV, then you sign them, and finally we send the signed documents to HM Land Registry. This is a fixed fee, shown on our Wills Pricing page.
If you want to own the property in unequal shares, you will normally need a Declaration of Trust. We do not prepare these, but we can refer you to an appropriate professional.
A note on care fees
Severing a joint tenancy and leaving your share in a Will trust is sometimes promoted as a way to protect a home from care fees. However, severance on its own does not do this. How a care fees assessment treats a share in a property depends on the circumstances. Also, local authorities can look at whether someone gave away or rearranged assets deliberately to avoid paying for care. Local authorities call this deliberate deprivation of assets. You can read more on our page about protecting your home from care fees.
Not sure how you own your property?
Many people do not know whether they are joint tenants or tenants in common. Your title register at HM Land Registry will usually show it. Sometimes the register contains a restriction saying that the registrar cannot register a disposition by a sole proprietor without a court order. In that case, the owners are normally tenants in common. If there is no such restriction, however, they are normally joint tenants.
You can download a copy of your title register from HM Land Registry, or we can obtain it for you through our Land Registry Title Register Search for a small fixed fee. We will then explain what it shows, and whether your ownership works with the Will you have in mind.
Talk to A.D.E. Wills
If you are not sure whether your ownership fits your Will, Edward is happy to talk it through in a free initial chat. Call 01865 507174 or email info@adewills.co.uk, or read more about our Wills.
