Joint Ownership and Inheritance: Joint Tenants vs Tenants in Common

How you jointly own a property has a direct, significant effect on what happens to it when one owner dies - and many people who own property jointly don’t actually know, or have ever checked, which of the two structures applies to them. This article covers England and Wales - property law differs in Scotland, where joint owners don’t use these terms and the property only passes automatically to the survivor if the title deeds include a ‘survivorship destination’.

The two structures

• Joint tenants: both owners hold the entire property together, with no defined individual shares. On the death of one owner, the property passes automatically to the surviving owner, by ‘right of survivorship’ - regardless of what either owner’s will says, since the property isn’t actually part of the deceased owner’s estate to leave to anyone else (although their share still counts towards their estate for Inheritance Tax purposes).
• Tenants in common: each owner holds a specific, defined share of the property (which can be unequal - 50/50, 70/30, or any other split), and each share does form part of that owner’s estate on death, passing according to their will (or intestacy rules if there’s no will) rather than automatically to the other owner.

Why this matters so much for wills

If you’re joint tenants and your will says ‘I leave my share of the house to my children’, this instruction is ineffective for that property - it passes automatically to the surviving joint owner regardless of what the will says, because right of survivorship overrides the will entirely for jointly-tenanted property. This is a genuinely common and costly misunderstanding, particularly for second marriages or unmarried couples wanting to ensure a share passes to their own children rather than automatically to a partner.

Why tenants in common is often preferred for blended families or unequal contributions

• Unmarried couples wanting to leave their share to children from a previous relationship, rather than it passing automatically to their partner, generally need to be tenants in common with a will directing their share appropriately.
• Couples who contributed unequal amounts to a property purchase (a larger deposit from one partner, for example) can reflect this with unequal shares as tenants in common, rather than the equal split joint tenancy implies.
• Second marriages (see our dedicated article on this) commonly use tenants in common, often alongside a life interest trust, to balance providing for a second spouse with ultimately preserving a share for children from a first marriage.

Why joint tenancy remains common and sensible for many couples

For a first marriage with no children from previous relationships, and no specific reason to direct a share elsewhere, joint tenancy’s automatic survivorship is often exactly what both partners want - simplicity, with the property passing directly and immediately to the survivor without needing to wait for probate on that specific asset (see our dedicated probate article), since jointly-tenanted property doesn’t need a Grant of Probate to transfer to the surviving owner.

How to check which structure applies to your property

In England and Wales, you can check the HM Land Registry title register for your property (£7 via gov.uk) to see whether a ‘Form A’ restriction is noted, indicating tenants in common ownership - if no such restriction appears, the default assumption is generally joint tenancy, though it’s worth confirming with your original conveyancing paperwork or a solicitor if you’re not certain.

Changing from joint tenants to tenants in common

It’s possible to convert joint tenancy to tenants in common (a process called ‘severance of joint tenancy’) without both parties needing to agree, by serving a written notice of severance on the other owner and then sending form SEV to HM Land Registry (there’s no fee) - this can be relevant if circumstances change (a couple separating but not yet divorcing, for example, might sever a joint tenancy to ensure their share doesn’t automatically pass to a soon-to-be-former partner if they die during a lengthy separation process).

Why this matters for Inheritance Tax planning too

Although a jointly-tenanted property passes automatically to the survivor and doesn’t go through the deceased’s estate for distribution purposes, the deceased’s share still counts towards their estate for Inheritance Tax - and it can still qualify for the residence nil-rate band if it passes to children or grandchildren. Where it passes to a surviving spouse or civil partner instead, it’s covered by the spousal exemption and no residence nil-rate band is used on that first death (see our dedicated RNRB article) - the specific ownership structure is a genuine factor in broader estate planning, not just a technical property law detail.

The bottom line

How you jointly own a property - joint tenants or tenants in common - determines whether it passes automatically to a surviving co-owner regardless of your will, or forms part of your estate to be distributed as you direct. Checking which structure applies to your own property, and whether it still matches your actual wishes, is a straightforward but often-overlooked piece of estate planning.