What Happens to Jointly Owned Property When Someone Dies? If you own a property with someone else — whether that’s a spouse, partner, family member, or friend — it’s important to understand what happens to that property when one of you passes away.
The answer depends entirely on *how* the property is legally owned. Getting this wrong can lead to unexpected outcomes, family disputes, and unnecessary tax bills.
In Part 1 of this guide, we looked at what happens to joint bank accounts after a death. In this second part, we focus on jointly owned property — houses, flats, and land — in England and Wales.
What Does Jointly Owned Property Mean?
Jointly owned property means two or more people are named on the legal title as owners, as recorded at HM Land Registry.
However, there are two very different ways to jointly own property in England and Wales, and the distinction between them has significant consequences when someone dies.
The Two Types of Joint Property Ownership
Joint Tenants
When property is held as joint tenants, all owners are treated as owning the whole property together, with no individual shares. The key feature is the right of survivorship — when one joint tenant dies, the property automatically passes to the surviving owner.
This happens outside the deceased person’s Will. The right of survivorship takes priority regardless of what the Will says. The surviving owner simply notifies HM Land Registry and provides a death certificate to update the title into their sole name.
Most married couples and civil partners hold property as joint tenants.
Key points about joint tenants:
• All owners have equal, undivided ownership
• The right of survivorship applies automatically on death
• The property cannot be left to someone else in a Will
• Updating the Land Registry is straightforward — probate is not usually needed for the property itself
Tenants in Common
When property is held as tenants in common, each owner holds a distinct share. These shares don’t have to be equal — one person might own 60% and the other 40%.
The crucial difference: there is no right of survivorship. When a tenant in common dies, their share does not pass to the surviving owner automatically. Instead, it forms part of their estate and passes according to their Will — or under intestacy rules if there is no Will.
Probate will usually be needed before the deceased’s share can be transferred.
Key points about tenants in common:
• Each owner holds a defined share (which may be unequal)
• There is no automatic right of survivorship
• Each owner’s share passes through their Will or intestacy rules
• Probate is typically required to deal with the deceased’s share
How to Check How Your Property Is Held
Many homeowners don’t know whether they own as joint tenants or tenants in common. Fortunately, checking is straightforward.
Search the HM Land Registry for your property title. If you see a Form A restriction — stating that no disposition by a sole proprietor can be registered without a second trustee — the property is held as tenants in common. If there is no such restriction, it is almost certainly held as joint tenants.
An estate planning professional can check this for you if you are at all unsure.
Severing a Joint Tenancy — When and Why
You can change from joint tenants to tenants in common through severing the joint tenancy — serving a written notice on the other owner and registering the change with HM Land Registry.
Common reasons for severing include:
• Estate planning flexibility — leaving your share to children or other beneficiaries through your Will
• Asset / Home Protection — as part of a broader Residential Home protection strategy
• Relationship changes — clarifying each person’s share after a separation
• Blended families — ensuring each partner’s children inherit their share
Severing does not require the other owner’s agreement, but it must be done correctly and formally recorded. We recommend professional guidance to ensure the change is documented and your Will is updated accordingly.
Does Joint Property Ownership Avoid Probate?
This is one of the most common questions we’re asked, and the answer depends on how the property is owned.
Joint tenants: Yes, in most cases. The right of survivorship operates automatically, so the property passes outside the estate. Probate is not needed for the property itself, though it may still be required for other assets.
Tenants in common: No. The deceased’s share forms part of their estate and must go through the probate process before it can be transferred.
Joint property ownership alone is not a complete probate avoidance strategy.
Property and Inheritance Tax Implications
Jointly owned property has important Inheritance Tax (IHT) implications, regardless of how it’s held.
For joint tenants, the deceased’s half-share is still included in their estate for IHT purposes, even though it passes automatically to the survivor. Transfers between spouses and civil partners are usually exempt from IHT, but this isn’t the case for unmarried couples or other co-owners.
For tenants in common, the deceased’s specific share is valued and included in their estate. This may attract IHT at 40% on amounts above the nil-rate band (currently £325,000, with an additional residence nil-rate band of up to £175,000 in certain circumstances).
Proper estate planning — including how property is owned — can make a meaningful difference to your estate’s tax position. This is an area where professional advice is particularly valuable.
Common Mistakes with Property Ownership
We’ve seen several recurring mistakes over the years:
1. Assuming property passes through a Will when held as joint tenants — the right of survivorship overrides the Will.
2. Not knowing how the property is held — leading to surprises after a death.
3. Failing to update ownership after a separation — the property may still pass automatically to your ex-partner.
4. Not having a Will when property is held as tenants in common — your share passes under intestacy rules, which may not reflect your wishes.
5. Ignoring the tax implications — particularly for unmarried couples, where there is no spousal exemption.
When to Review Your Property Ownership Arrangements
Whenever there’s a significant change in your circumstances reviewing how your property is owned is recommend, including:
• Marriage, divorce, or separation
• Starting a new relationship or moving in with a partner
• Having children or grandchildren
• Changes to your financial situation
• Concerns about care home fees or asset protection
A regular review ensures your property ownership aligns with your wishes and your overall estate plan. If you’re unsure whether your current arrangement is right for you, book a free consultation and we’ll talk it through.
Summary
Whether your property passes automatically to a surviving owner or forms part of your estate depends on one legal distinction: joint tenants or tenants in common.
If you’re unsure how your property is held, now is the time to check. Bispham Legal Services help families across London and Essex ensure their property ownership, Wills, and estate plans work together.
Book a free consultation today to discuss your property ownership and estate planning needs.
