If you own your home with someone else, you own it either as joint tenants or as tenants in common. As joint tenants, the whole home passes automatically to the survivor when one of you dies, whatever your Will says. As tenants in common, you each own a separate share, and your Will decides who inherits yours.
Key Takeaways
- Joint tenants own the whole property together. When one dies, the survivor automatically owns all of it, and the Will makes no difference.
- Tenants in common each own a share, which can be equal or unequal, and each share passes under the owner's Will.
- You can check how you own your home from the title register at HM Land Registry.
- You can change from joint tenants to tenants in common by "severing" the joint tenancy. You don't need the other owner's agreement, just written notice.
- Tenants in common is usually needed for a Protective Property Trust, and is often the better choice for blended families and unmarried couples.
This guide covers property in England and Wales. Scotland and Northern Ireland have their own rules.
What's the difference between joint tenants and tenants in common?
The word "tenants" here has nothing to do with renting. It's the legal term for people who own property together.
| Joint tenants | Tenants in common | |
|---|---|---|
| What you own | The whole property, together | Your own share, for example half each |
| Shares | Always equal | Equal or unequal, for example 60/40 |
| When one owner dies | The survivor automatically owns it all | The share passes under the owner's Will |
| Does your Will affect the home? | No | Yes |
| Typical owners | Married couples and civil partners | Blended families, unmarried couples, friends or relatives buying together |
The automatic passing to the survivor is called the "right of survivorship". It's why so many couples are surprised to find that the house they mentioned in their Will was never covered by it at all.
Why does it matter for your Will?
For many married couples, owning as joint tenants is exactly what they want. Everything goes to the survivor simply and quickly, without waiting for probate on the house.
But it can cause real problems in other situations:
- Blended families. If you each have children from earlier relationships, the survivor ends up owning the whole house. They can leave it all to their own children, or remarry, and the first partner's children can end up with nothing. Our guide to Trusts in Wills explains how a Protective Property Trust prevents this, but it only works if you own the home as tenants in common.
- Unequal contributions. If one of you put in more money, joint tenants can't reflect that. Tenants in common can hold unequal shares, ideally backed up by a written declaration of trust.
- Unmarried couples. Owning as joint tenants does make sure the home passes to your partner. But if you'd rather your share went to your children, or you want both, you'll need to be tenants in common and make Wills. Either way, remember that an unmarried partner inherits nothing else without a Will (what happens if you die without a Will).
- Separation. If your relationship ends, you may not want your former partner to inherit your home automatically. Severing the joint tenancy is often one of the first things to consider.
A Will can't change a joint tenancy. If you own your home as joint tenants and leave "my share of the house" to your children, that gift has nothing to pass on if you die first, because the house has already gone to the survivor. That's why it's so important to check how you own your home before you make your Will.
How do you find out how you own your home?
The quickest way is to look at your title register, which you can get from HM Land Registry for a small fee.
- If you're tenants in common, the register will usually include a "restriction" in the proprietorship section, which begins: "No disposition by a sole proprietor of the registered estate…". This is often called a Form A restriction.
- If there's no such restriction, you're most likely joint tenants.
If your home isn't registered, the answer will be in your title deeds. Your conveyancer's paperwork from when you bought may also say. When we prepare a Protective Property Trust, we carry out the Land Registry search for you, so you don't have to work this out on your own.
How do you change from joint tenants to tenants in common?
Changing is called "severing the joint tenancy". It's usually straightforward:
- Give written notice to the other owner. A short, signed "notice of severance" is enough. You don't need their agreement, although most couples do it together (Law of Property Act 1925, section 36).
- Tell HM Land Registry, using Form SEV, so that a Form A restriction is added to your title. If your home isn't registered, keep a signed copy of the notice with your deeds.
- Make or update your Wills, so each of you says who should inherit your share.
Nothing changes day to day. You both still live there, any mortgage carries on exactly as before, and you can still sell together. You can't switch back to joint tenants on your own, though, so it's worth thinking it through first.
When we draft a Protective Property Trust in your Will, we check how your home is owned with HM Land Registry and, if needed, produce the severance documents for you: tailored to your property, already completed, and ready for you to sign and send to the Land Registry.
Frequently asked questions
Do we both have to agree to sever a joint tenancy?
No. Either owner can sever by giving the other written notice. It's usually better to do it together, though, and in most cases couples do.
Does severing affect our mortgage?
No. The mortgage stays exactly as it is, and you both remain responsible for it. If you have a mortgage, make sure your Wills and any life insurance would cover it if one of you died.
Can tenants in common own unequal shares?
Yes. You can own the home in any proportions, for example 70/30 if one of you paid more towards it. Record the shares in a declaration of trust so there's no argument later.
Is a joint bank account the same?
No. Joint bank accounts usually pass to the survivor automatically, in a similar way to joint tenants. Tenants in common applies to property and land, not bank accounts.
Should married couples be tenants in common?
Not necessarily. Joint tenants suits many married couples very well. But if either of you has children from an earlier relationship, or you want to protect your share of the home for your children, tenants in common with a Protective Property Trust in your Wills may be the better choice.
The short version: check before you make your Will
How you own your home decides whether your Will can deal with it at all. If you're joint tenants and that's what you both want, your Wills can be simple. If you'd like your share to go to your own children, or you're a blended family, you'll probably need to sever the joint tenancy and include a Trust in your Wills. Contact the Will Team to talk through your situation, or read more about Mirror Wills.
About this guide
This guide was written and checked by the Downloadawill Will Team. It explains the law in general terms and isn't legal advice for your own situation. Downloadawill is a trading style of Direct Wills. All our Will Writers are Members of The Society of Will Writers. We've been writing Wills for people in England and Wales since 1997. Read more about us.
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