The two ways to own property jointly
In England & Wales there are two forms of co-ownership and they behave completely differently on death:
- Joint tenants — you own the whole property together. When one owner dies, their interest passes automatically to the surviving owner by “survivorship”, outside your Will and without probate. Your Will cannot override this.
- Tenants in common — you each own a distinct share (often 50/50, but it can be unequal). Your share passes under your Will — or, if you have no Will, under the intestacy rules to your blood relatives, not automatically to your co-owner.
Your HM Land Registry title shows whether you own as joint tenants or tenants in common. Many couples aren't sure — and it changes everything about what your Will can do.
What can go wrong
- As tenants in common with no Will, your share can pass to relatives instead of your partner — an unmarried partner inherits nothing automatically.
- As joint tenants, the home passes to the survivor even if you intended your share to go to your children — your Will can't change that unless you sever the joint tenancy.
- Assuming “it'll just pass to them” without checking the ownership type leaves families with nasty surprises.
How ClearLegacy helps
Our guided Will asks how you own your home and helps you record your wishes for your share accordingly. For most couples that means leaving your share to each other and then to your children. If you are joint tenants and want your share to pass under your Will instead, you would need to sever the joint tenancy first (see below).
- Record who inherits your share of the property.
- Provide for a partner who would otherwise inherit nothing.
- Appoint executors to handle the property.
- Usually delivered within 24 hours, legally valid in England & Wales.
How to sever a joint tenancy
Severing turns a joint tenancy into a tenancy in common, so each owner's share can pass under their own Will. It does not change who owns the property or affect the mortgage.
- Give written notice. Under section 36(2) of the Law of Property Act 1925, one owner can sever by giving the other owner written notice. The other owner does not have to agree. Keep proof that the notice was delivered.
- Update the Land Registry. Apply to HM Land Registry to add a Form A restriction to the title. This records that the owners are now tenants in common.
- Know your shares. After a notice of severance, owners usually hold equal shares. If you want unequal shares, record that in a declaration of trust — a conveyancer can help.
- Then deal with your share in your Will. Once severed, your share no longer passes automatically. Without a Will it would pass under the intestacy rules.
Severing is a significant step, especially for married couples who may be happy for survivorship to apply. Think about it alongside your Will rather than on its own.
Make sure your home passes the way you intend
Fixed price, legally valid in England & Wales, usually delivered within 24 hours.
Make my Will — £69FAQs
Does my Will control jointly owned property?
Only if you own as tenants in common — then your share passes under your Will. If you own as joint tenants, the property passes automatically to the surviving owner by survivorship, outside your Will and your Will cannot change that unless you first sever the joint tenancy.
How do I find out if I'm a joint tenant or tenant in common?
Your HM Land Registry title register shows it (a 'Form A restriction' usually indicates tenants in common). If you're unsure, you can check your title or ask a conveyancer.
Can I leave my share of the house to my children instead of my partner?
Yes, if you own as tenants in common — your share passes under your Will. If you're joint tenants and want this, you'd sever the joint tenancy to become tenants in common first, then leave your share as you wish in your Will.