How does joint ownership of property affect my Will?
There are two different ways in which a couple can own a property. They can own property as “joint tenants” or as “tenants in common”. This has nothing to do with landlord and tenants.
- Joint Tenants
Each owner owns the whole of the property. On the death of the first owner the property will automatically pass to the survivor – irrespective of the terms of the Will or the rules of intestacy.
There can be no more than 4 owners at the same time.
- Tenants in Common
Each owner has a distinct share in the property. On the death of the first owner the property does not automatically pass to the survivor but will pass under the terms of their Will or under the rules of intestacy.
The shares need not be equal and could, for example, reflect the contribution that each owner made to the purchase price or mortgage – one could hold 75% ownership and the other 25%.
Holding a property as tenants in common can be used to keep control of an interest in a property after that person’s death e.g. to guarantee that it ultimately passes to their children even if the surviving spouse or partner remarries or ends their days in a nursing home.
I am getting married for the second time. How do I make sure my children from my first marriage receive my share of my home and not my new spouse?
If the home is held in the joint names of your new spouse and yourself as joint tenants, then should you die first, by right of survivorship your new spouse will become the owner of the whole of your home. Your children from your first marriage could receive nothing.
To ensure your children receive your share you must:
- Hold as tenants in common.
- Make a Will to provide for your share to go to your children – if you fail to do so the rules of intestacy apply and this may mean your home could go to your new spouse. Your Will could state your new spouse has a right to reside in your home under certain conditions.
How do I change a joint tenancy into a tenancy in common?
By serving a notice on the other co-owner, usually in a prescribed form, and lodging this with the deeds or amending your title at the Land Registry. In certain circumstances this can be done without the consent of the other co-owner.
It is also possible to change a tenancy in common to a joint tenancy, but this must by done by mutual agreement.
How do I know if I hold under a joint tenancy or a tenancy in common?
It is very important to know if you hold as a joint tenant or a tenant in common. This can have different consequences if you are single, married, marrying for the second time, separating or divorcing.
You will need to check your title if it is registered or the documents that form your deeds if it is unregistered.
What would be best – joint tenancy or tenancy in common?
This will depend on your circumstances and requirements.
It is very common for couples to hold as joint tenants, so the property automatically passes to the survivor.
A tenancy in common may be best where a property is held by unmarried couples, brothers and sisters, couples marrying for the second time and where one has children from another marriage or relationship, parents and children, or business partners. In these circumstances individuals may not want the other owner to inherit their share.
By holding property in the correct manner you can save yourself and your family considerable stress, legal expenses and long term care fees.
What is the next step?
MACKS strongly recommend a face-to-face meeting with one of our specialist solicitors to ensure you hold the property in the right way for your circumstances and that your Will reflects this.