If you own a property with someone else, the way you own it can decide what happens to your share when you die. Many people own their home as joint tenants without realising that their Will may not control their share. This guide explains how to sever a joint tenancy, why some people choose to, and what to think about first.
Joint tenants and tenants in common: the difference
As joint tenants, you and your co-owner(s) own the whole property together, with no separate shares. So, if one owner dies, the property passes automatically to the survivor(s), whatever their Will says. This is called the “right of survivorship”.
As tenants in common, each owner has their own share. You can leave your share to whoever you choose in your Will, including into a trust. If you have no Will, your share passes under the intestacy rules.
Survivorship means a jointly owned property passes outside the Will. However, the property still counts for inheritance tax, and the estate may still need a grant of probate for other assets.
Why sever a joint tenancy?
Severing a joint tenancy turns it into a tenancy in common. People often consider it when:
- they want to choose who inherits their share, for example children from an earlier relationship
- they are separating or divorcing, so that their share does not pass automatically to their former partner
- they want to include a trust in their Will, such as a Life Interest Trust, which needs a share of the property to pass under the Will
Severing is not right for everyone. For example, if you and your partner want everything to pass to each other, a joint tenancy may suit you well.
Can I sever without my co-owner’s agreement?
Yes. One joint owner can sever a joint tenancy on their own, without the other owner’s consent. You do this by giving the other owner(s) a written notice of severance. The notice takes effect once it has been properly served, for example by handing it to them or sending it to their last known address.
After that, the register at HM Land Registry should be updated with a restriction, using Form SEV. The restriction shows that the property is now held as tenants in common.
Although agreement is not needed, it is usually better to talk to your co-owner first. Severance can be a sensitive step, especially within a relationship.
How to sever your joint tenancy with A.D.E. Wills
A.D.E. Wills can sever a joint tenancy into a tenancy in common in equal shares. Our service involves:
- checking your title register, so we know how the property is currently held
- drafting the Notice of Severance and Form SEV
- you signing the documents
- sending the signed documents to HM Land Registry
We also check that your Will works with the new ownership. If we wrote your Will, we can update it for a fixed fee, or we can prepare a new Will. 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 is sometimes promoted as a way to protect a home from care fees. Severance on its own does not do this. How a share in a property is treated in a care fees assessment depends on the circumstances. Local authorities can also look at whether assets were rearranged deliberately to avoid paying for care. This is known as deliberate deprivation of assets. You can read more on our page about protecting your home from care fees.
Things to consider before you sever
Before deciding, think about:
- your relationship with your co-owner(s), and whether to discuss it with them first
- your long-term plans for the property
- what you want to happen to your share when you die
- whether your Will, or your co-owner’s Will, needs updating
Also, remember that severance cannot usually be undone without everyone’s agreement. Turning a tenancy in common back into a joint tenancy needs a transfer at HM Land Registry, which is conveyancing work that we refer out.
Not sure how you own your property?
Your title register at HM Land Registry will usually show it. If the register has a restriction saying that no disposition by a sole proprietor can be registered without a court order, the owners are normally tenants in common. You can get a copy from HM Land Registry, or we can obtain it through our Land Registry Title Register Search. You can also read GOV.UK’s guidance on joint property ownership.
Talk to A.D.E. Wills
If you are thinking about severing your joint tenancy, Edward is happy to talk it through in a free initial chat. Call 01865 507174, email info@adewills.co.uk, or read more about our Wills.
