When a property is held as tenants in common and one owner dies, that owner’s share does not pass automatically to the other owner. Instead it passes under their will, or under the intestacy rules if there is no will, and forms part of their estate for probate and inheritance tax. This is the key difference from joint tenants, where the whole property passes to the survivor by survivorship. This guide explains what happens next, and why how you own a property matters so much.
| Joint tenants | Tenants in common | |
|---|---|---|
| Ownership | Own the whole together, no distinct shares | Own defined shares (can be unequal) |
| On death | Passes automatically to the survivor | Share passes under the will or intestacy |
| In the estate for probate? | No, it passes outside the estate | Yes, the share is part of the estate |
| Can you leave your share to someone else? | No | Yes |
Plain-English guide written by Simon Jenkins — covering every stage of the probate process.
Survivorship: the crucial difference
There are two ways couples and other co-owners can hold the beneficial interest in a property in England and Wales.
- Joint tenants. Both own the whole, and neither has a distinct share. When one dies, the right of survivorship means the property passes automatically to the survivor. It does not go through the will, and it is not part of the estate for probate.
- Tenants in common. Each owns a defined share, which can be equal or unequal, for example 50/50, 60/40 or any split. There is no survivorship. When a tenant in common dies, their share passes under their will or the intestacy rules, and it counts as part of their estate.
You can check how a property is held at HM Land Registry. A tenancy in common is usually flagged by a “Form A restriction” on the title, which means a sole surviving owner cannot sell without appointing a second trustee or producing a grant.
What happens to the share when a tenant in common dies
Because the share is part of the estate, the personal representatives deal with it as they would any other asset:
- They establish who inherits the share under the will or intestacy.
- They value the share at the date of death for the estate accounts and any inheritance tax return.
- They obtain a grant of probate where one is needed.
- They transfer the share to the beneficiary, or sell the property and account for the proceeds.
If a surviving co-owner wants to sell, the buyer will need the deceased owner’s share dealt with properly, which is why the personal representatives must be involved. This is closely linked to how you transfer property ownership after death more generally.
Why people choose tenants in common
Holding as tenants in common is often a deliberate planning choice. Common reasons include:
- Protecting a share for children. Someone in a second marriage can leave their share to children from a first relationship, while still allowing their spouse to live in the home.
- Unequal contributions. Where one owner put in more of the purchase price, defined shares reflect that.
- Tax and care planning. Separating shares can help with inheritance tax planning and can be part of protecting a share against future costs.
Converting a joint tenancy into a tenancy in common is called severance, and it is done by serving a notice of severance and registering a restriction at the Land Registry. It can be done at any time while both owners are alive.
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Inheritance tax and the residence nil-rate band
How a home is held has real inheritance tax consequences. A share passing to a spouse or civil partner is covered by the spouse exemption, so no tax is due on it at that point. A share passing to children or grandchildren may qualify for the residence nil-rate band, the extra allowance for leaving a home to direct descendants.
This is where tenants in common can be powerful. By leaving your share to your children, often through a trust that still lets your spouse live in the property, you can use your own residence nil-rate band and keep your share out of the survivor’s estate. The trade-offs are not trivial, so this kind of planning should be done with advice, but the ownership structure is the foundation everything else is built on.
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Whether you are administering an estate that includes a share in a property, or thinking about how you and a partner should own your home, Curtis Legal can help. We act for families across Torfaen and South Wales. Call 0800 214 216 for a same-day callback.
About the author
Written by Simon Jenkins, Director and Solicitor at Curtis Legal. SRA 167489. Firm SRA 450129. Simon leads the Curtis Legal private client team and advises families across South Wales on property ownership, estate administration and inheritance tax planning.
This article is general information about the law in England and Wales and is not a substitute for tailored legal advice. Sources: GOV.UK, joint property ownership and GOV.UK, residence nil-rate band.
