Jointly Owned Property & Probate UK: Full Guide

Overview

Joint ownership, in simple terms, means two or more people share the legal title to a property at the Land Registry. Under the law of England and Wales, the legal title is always held on a form of trust, and the co-owners hold the property for themselves (or for others) as beneficiaries of that trust.

The legal ownership is uniform, but the beneficial ownership, which is what actually determines who gets what, can be structured in two very different ways. One route is a beneficial joint tenancy, where each co-owner owns the whole together and no one has a distinct share to give away.

The other is a tenancy in common, where each person owns an identifiable share that can be passed on by will. The choice has significant knock-on effects for inheritance, tax planning, divorce, care fees, and what happens if a co-owner becomes bankrupt.

Getting this right at the outset, or correcting it later through severance, is one of the more important decisions property owners make.

Key steps

1. Check how the property is currently held. Request an official copy of the title register from the Land Registry. Look for a Form A restriction, which indicates a tenancy in common. If no such restriction appears, the property is likely held as beneficial joint tenants, though this is not always conclusive and should be confirmed alongside any trust deed.
2. Decide which form of ownership suits your situation. Couples who want the survivor to inherit everything automatically often choose joint tenancy. Unmarried co-owners, those in second marriages with children from earlier relationships, or people who have contributed unequal sums usually benefit from tenancy in common, which allows each share to be dealt with separately on death.
3. Sever the joint tenancy if you want to change it. A joint tenancy can be converted to a tenancy in common by serving a written notice of severance on the other co-owner. Once served, the parties then apply to the Land Registry to enter a Form A restriction on the title. Severance can be done unilaterally and does not require the other owner's consent.
4. Record the beneficial shares in a Declaration of Trust. Where co-owners hold as tenants in common, a Declaration of Trust sets out the percentage each person owns, how sale proceeds will be divided, and what happens if one party pays more towards the mortgage or improvements. Without this, disputes years later can become expensive and difficult to resolve.
5. Align your will with your ownership structure. A tenancy in common share can be left by will, so make sure your will reflects who you want to inherit it. Many people use a Property Trust Will to leave their share into trust for their children while allowing a surviving spouse to continue living in the property. Review both documents whenever circumstances change.