, ,

What happens to jointly owned property if one owner dies?

, ,

For many homeowners in London, Surrey and across England and Wales, property is owned jointly – by spouses, civil partners, co‑habiting couples, family members or friends. A common question we are asked is: what happens to the property if one of the owners dies? Julie West Solicitors private client solicitor Emma Westsmith explains.

The answer depends entirely on how the property is owned. Joint ownership has significant consequences for lifetime planning, probate and inheritance. Making sure you understand how your property is owned will help you make sure your wishes are carried out and avoid distress for your family later.

How can property be jointly owned?

In England and Wales, there are two ways of owning property jointly:

1. Joint tenants

If the beneficial interest in the property is owned as joint tenants:

  • Both owners are treated as owning the whole property together;

  • There are no defined shares; and

  • When one owner dies, their interest automatically passes to the surviving owner like a joint bank account.

This is known as passing by survivorship. It is a common ownership choice for married couples and civil partners, but it is not always the most appropriate.

If you want your property to pass outright to your co-owner on death, this is a simple way to deal with it. Your interest in the property will not pass under your will. Because of the automatic transfer, a grant of probate is usually not required to deal with the property following death (although it may still be needed for other assets).

There is a danger with joint tenancy. The joint tenancy may be severed at any time by notice from either co-owner. Your co-owner does not need your permission to sever the joint tenancy and one may be served on you even if you have lost mental capacity to deal with your assets. The joint tenancy may also be severed automatically on bankruptcy or as a result of certain Court Orders, by mutual agreement and even by accident! It is imperative that any wishes you have about your interest in the property are repeated in your will in case this happens.

2. Tenants in common

This form of ownership is more common where:

  • Owners have contributed unequal amounts;

  • There are second marriages or blended families; and/or

  • Owners want to control who inherits their share and when.

Each owner has a defined share (for example 50% each, or 70/30).

When one owner dies:

  • Their share does not pass automatically to the other owner;

  • Instead, it forms part of their estate; and

  • It passes under the terms of their will, or under the intestacy rules if there is no will.

What if you are unsure how the property is owned?

Many people are not certain whether they own their property as joint tenants or tenants in common.

This can usually be confirmed by:

  • Reviewing the Land Registry title;

  • Checking for a restriction indicating tenants in common; and

  • Looking at the transfer made when the ownership last changed together with any declaration of trust made when the property was purchased or since.

Here at Julie West Solicitors we regularly review ownership arrangements and explain what they mean as part of our wills service or as a standalone piece of work.

Can a will override joint ownership?

This is a crucial point:

  • If you own as joint tenants, your will cannot change who inherits the property.

  • If you own as tenants in common, your will does control who receives your share.

This is why it is so important that your property ownership and will work together. Mismatches between the two are a very common source of unintended outcomes.

Why does this matter for estate planning?

The way property is owned affects:

  • Who ultimately inherits;

  • Whether probate is required;

  • Inheritance tax planning;

  • Asset protection for children and future generations; and

  • Care fee considerations for the surviving owner.

For many families in London and Surrey, reviewing joint ownership is a key part of lifetime planning.

Private client solicitor Emma Westsmith

How we can help

At Julie West Solicitors, we regularly advise clients on:

Clear advice now can prevent costly and stressful problems later.

If you would like advice tailored to your circumstances, please get in touch with our friendly private client team.