Protecting Your Share in the Family Home: Joint Tenants Vs Tenants In Common
Reasons to choose Wilson Browne
On this page:
When buying a property with someone else, whether a partner, spouse, friend or relative, many people don’t realise there’s more than one way to legally own it.
The way you hold the property can have a significant impact on what happens to your share when you die.
If your aim is to protect your share of the property and ensure it passes to your chosen beneficiaries, such as your children, then switching from joint tenants to tenants in common could be one of the most important legal steps you take.
In this article, we explain the difference between the two forms of co-ownership, why you might consider making a change, and how it fits into broader estate planning.
What’s the Difference Between Joint Tenants and Tenants in Common?
In England and Wales, there are the two main ways to own property jointly:
Joint Tenants
- You both own the whole property equally.
- If one of you dies, the property automatically passes to the surviving owner, irrespective of what your will says.
- This is known as the principle of survivorship.
Tenants in Common
- You each own a specific share of the property. This is often 50/50, but not
- Your share forms part of your estate when you die and is distributed according to your will or the rules of intestacy if you don’t have one.
- There is no automatic right of survivorship.
Why Change to Tenants in Common?
Changing from joint tenants to tenants in common is known as “severing the joint tenancy”. This allows you to control what happens to your share of the property after your death. Here are some of the most common reasons our clients choose to make this change:
- To create flexibility in your Will. Owning as tenants in common allows you to leave your share into a life interest trust for your partner, giving them the right to live in the property for life, while ensuring your share ultimately passes to your children.
-
To assist with long-term care fee planning. By ring-fencing your share of the property in trust, you may help protect it from being included in a partner’s financial assessment for care fees
- To reduce the risk of disputes later. When it’s clear who owns what, and there’s a valid will in place, the risk of family disagreements and legal challenges can be reduced significantly.
Example Scenario
Peter and Mary are married and own their home as joint tenants. John has three children from a previous marriage. He wants to ensure they inherit his half of the house, but if he dies first, Mary will automatically become the sole owner and could leave the property elsewhere in her own will.
By switching to tenants in common and updating his will, Peter can leave his share to his children while still allowing Mary to live in the property for the rest of her life. On Peter’s death, his share will pass in accordance with the terms of his Will.
How Do You Make the Change?
Changing from joint tenants to tenants in common involves a process called severing the joint tenancy. This is done by:
- Notifying the other co-owner(s) that the joint tenancy has been severed(by way of notice).
- Completing Form SEV and submitting it to HM Land Registry.
- Ensuring your will is updated to reflect what should happen to your share.
Important Considerations
- Severing the joint tenancy does not affect your day-to-day rights to use or live in the property.
- You must have a valid will in place otherwise, your share will be distributed under the rules of intestacy.
- If you are co-owners and only one person wants to sever, it is still possible but must be done properly.
- In some cases, a declaration of trust may also be required to record the exact ownership shares.
Take Control of Your Future Planning
Making the right decisions now can avoid significant problems and heartache later. Whether you’re concerned about protecting your children’s inheritance, managing care costs, or simply want to ensure your wishes are respected, changing from joint tenants to tenants in common could be a valuable part of your estate planning.
For further information, you can contact us to arrange a consultation with one of our estate planning specialists.
Posted:
Anika Rizvi
Solicitor
Anika is a Solicitor in the Private Client team at our Leicester office. Anika assists with a variety of matters including Wills, Trusts, Inheritance Tax, Lasting Powers of Attorney, Probate and Administration of Estates. Having graduated with a LLB Law degree in 2020 Anika went…