When the joint owner of a property dies, does the property pass to the survivor?

If you own a property jointly with someone else, you may automatically become the sole owner when they die, depending upon the way in which the property is held.

If you live in a home which you own jointly with someone else, it is important to understand the type of ownership you have. This is because it will determine what happens to the property after the death of one owner.

The two types of property ownership

If a property is owned as tenants in common, then each owner has a specified share of the property. For example, a couple may choose to have 50 per cent each, or if one has contributed more to the purchase price they can agree on different shares.

When a tenant in common dies, their share of the property passes in accordance with the terms of their Will or, if they did not have a Will, then under the Rules of Intestacy to specified close family members. This means that the person living in the property will not necessarily inherit it and they may have to leave so that it can be sold.

The second type of property ownership is a joint tenancy. No share is specified and the property is deemed to belong to the owners jointly. When one of them dies, the remaining owner automatically owns the whole of the property.

This is the case, even if the deceased left a Will leaving all of their assets to someone else, because a joint tenancy interest in a property passes by the Right of Survivorship and not via a Will.

The Land Registry will need to see a certified copy of the Death Certificate to amend the Register after the death of a joint tenant, however they will not ask for a Grant of Probate, although this may still be needed for other assets that the deceased may have held. If the property is solely owned or owned by tenants in common, the Land Registry will require a Grant of Probate before they amend the Land Register.

How is my property owned?

To find out how a jointly owned property is held, you need to check the Land Registry title. The property is owned as tenants in common if the section marked ‘B: Proprietorship Register’ contains this or similar wording: ‘No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.’ If there is no restriction then ownership is as joint tenants.

Estate planning

In some cases it is advantageous to your estate for your property to be owned by way of a tenancy in common. It is still possible for someone to stay in the property after the death of the other owner by leaving them a life interest in it. Planning for the future can be a complex area and it is advisable to seek legal advice to ensure that your loved ones are provided for as you would wish.

If you would like to speak to a Wills and estate planning expert, ring us on 0117 952 0698 or email us at info@elm-online.co.uk.

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