HCR Law Events

8 December 2014

Wills – Joint Tenants or Tenants in Common?

Most people should know if they own a property in their sole name or if they own it jointly with another person. But what most people don’t realise is that there are two different types of joint ownership and if you do own property in joint names then it is important to know the distinction when making a will.

When two people in a relationship purchase a property, married or unmarried, the default position is often for the property to be registered in their joint names as joint tenants. This means that each person has an interest in the whole of the property and on the death of either owner; the property will pass automatically to the surviving joint owner. Technically therefore, the property does not form part of the estate for the purposes of that person’s will.

For many, this is uncontroversial and in fact achieves what would be desired in any event. However, with a person’s property often being their main asset, in certain circumstances this could lead to significant upset e.g. where husband and wife have separated, but not formally divorced or severed ownership of the matrimonial home or where there are children from a previous relationship on one or both sides.

The alternative is to own the property as tenants in common, whereby each joint owner holds a distinct share of the property. Unless stated otherwise, where two people own the property it is usually half each. However, if there have been unequal contributions upon purchase then sometimes tenants in common will own unequal shares to reflect this.

If you own a property as tenants in common, your share does not automatically pass to the joint owner but will pass in accordance with the provisions in your will. It is essential for tenants in common to consider this and make a will to ensure that those who they wish to benefit do not lose out.

This does not necessarily mean that the surviving joint owner of a tenancy in common has to sell the property when the person they own it with dies. There are various provisions available to protect a joint owner’s right to occupy that can be discussed and incorporated in your will.

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Dawn Oliver, Partner

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