Joint Tenants or Tenants in Common: What Does It Mean for Your Will?

You may own your home with your husband, wife, partner or another family member. But do you know what would happen to it if one of you were to pass away?

The answer depends partly on how you own it. In England and Wales, the two main ways to hold the beneficial interest in a jointly owned home are joint tenants and tenants in common. These terms describe ownership, not renting. Understanding the difference helps you make sure your property arrangements and your Will work together.

What does “joint tenants” mean?

Joint tenants have equal rights to the whole property, rather than separate defined shares. If one owner passes away, their interest passes automatically to the surviving joint owner or owners. This is known as the right of survivorship.

For example, if a couple own their home as joint tenants and one of them passes away, the surviving partner will normally become the sole owner. A gift in the deceased partner’s Will does not override this.

This can suit people who want the home to pass directly to their co-owner. However, it offers less flexibility if you want to leave your interest to children or place it into a trust through your Will.

Once the survivor owns the home outright, its eventual destination will depend on their own arrangements and circumstances. Your Will cannot control what they later decide to do with it.

What does “tenants in common” mean?

Tenants in common each own a distinct beneficial share. The shares can be equal or unequal, such as 50/50 or 70/30. Unequal shares should be properly documented, often in a declaration of trust.

When an owner passes away, their share does not automatically pass to the other owner. It forms part of their estate and passes under their Will or, if there is no valid Will, the intestacy rules.

This offers more choice over who ultimately benefits, but it also makes a carefully drafted Will particularly important. Leaving a share outright to someone else can affect the surviving owner’s position, so consider their right to remain in the home as well as your intended beneficiaries.

Why does this matter for blended families?

You may want your partner to remain comfortable in the home while ensuring that your children from an earlier relationship eventually inherit your share.

A suitably drafted life interest trust in your Will may help achieve this. Depending on its terms, the surviving partner could have a right to occupy the home, with your share ultimately passing to your chosen beneficiaries.

The Will should address practical questions too: who will act as trustees, who pays the bills, whether the survivor can move home, and what happens to any money released by downsizing. These details deserve as much attention as the choice of beneficiaries.

Does tenants in common protect a home from care fees?

Changing the ownership alone does not protect a property from care fees. A Will trust is not a blanket guarantee either. Any planning must be assessed against your circumstances and the applicable care-funding and tax rules. Be cautious of promises that your home will automatically be protected.

Will probate be needed?

With joint tenants, the deceased owner’s interest normally passes by survivorship rather than under their Will. Probate may still be needed for other assets in the estate.

With tenants in common, administering the deceased person’s beneficial share may involve probate. However, the legal title and beneficial ownership are different: the legal title passes to the surviving registered owner or owners, who may hold it on trust. The steps needed for a later sale depend on the ownership, restrictions and estate arrangements.

How can you check how you own your home?

Start with the title register and the documents from your purchase. A Form A restriction can be an important clue, but it is not conclusive proof of a tenancy in common and does not record the size of each owner’s share.

The transfer document, any declaration of trust and any later notice of severance may also need to be reviewed. If the position is unclear, a solicitor or conveyancer can help establish it.

Can you change from joint tenants to tenants in common?

Yes. This is called severing the joint tenancy. It changes the beneficial ownership; it does not remove anyone as a legal owner.

The process can involve serving a written notice of severance on the other owner or owners, followed by an application to HM Land Registry for a Form A restriction. Form SEV is commonly used where its requirements are met. The change can be made without the other owners’ agreement, but the notice and registration requirements must be followed correctly.

Simply changing your Will does not sever a joint tenancy. If you intend your share to pass into a trust through your Will, the ownership must be arranged so that the share can pass under the Will. Review both together before making changes.

Which option is right for you?

Neither arrangement is automatically better. The right choice depends on your family, financial contributions, wishes for the surviving owner and who you want to inherit.

It is worth reviewing your arrangements after buying a home, marrying, separating or welcoming children into the family—and whenever you update your Will.