Joint tenants or tenants in common: why your will may not decide who gets the house

When people own a home together, they hold it either as joint tenants or as tenants in common. The difference matters most when one of you dies.

Joint tenants own the home together as a whole. When one owner dies, the property passes automatically to the surviving owner or owners. You can't pass on your ownership in your will, because there's nothing left for the will to pass on.

Tenants in common each own a share. The shares can be different, for example a bigger share for the owner who put in more money. When you die, your share doesn't go automatically to the other owners. It passes under your will to whoever you choose: your children, your partner or someone else. If there's no will, the intestacy rules decide where it goes.

Source: GOV.UK guide to joint property ownership

Joint tenancy is often exactly right. If you've only been married once, your children are children of you both and you each want the survivor to have everything, it's simple and it does that job well. The trouble starts when the way you own the home and what you want don't match. Second marriages and children from earlier relationships are where I'd look hardest.

Example: Tom and Jean

Tom's first wife died. Years later he married Jean and they bought a home together, mostly with money from selling the house Tom's children grew up in. They put it in both their names as joint tenants. Nobody explained there was a choice to make.

Tom then made a will leaving his share of the house to his children. He died first and the whole house passed to Jean. His will was perfectly clear. It just never got a say, because as a joint tenant Tom had no share it could pass on.

Jean hasn't done anything wrong. She may fully intend Tom's children to receive something one day. But the house is hers now and she can leave it to whoever she chooses. Tom's children are relying on her goodwill rather than anything Tom put in writing.

If they'd been tenants in common, Tom's will would have done exactly what he wrote. That's the gap I'd want any couple with children from earlier relationships to close while they're both alive.

For a registered property, the first place I'd look is the title register, HM Land Registry's record of who owns it. The clue is a Form A restriction. It begins with the words "No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises". Older registrations may use earlier wording that refers to "the land" rather than "the registered estate".

The restriction is a clue because of how it gets there. HM Land Registry adds a Form A restriction automatically whenever it registers more than one owner, unless it's told they hold the property for themselves as beneficial joint tenants. Those are joint tenants in the sense I described above, whose ownership passes to the survivor rather than under a will.

So the register tells you what HM Land Registry was told. It can still mislead you. A Form A restriction can be there for other trust reasons. And if one owner served a notice of severance that was never registered, the register won't show the change. Treat it as a strong indicator. Before acting on it, check the paperwork from your purchase or ask the conveyancer who handled it.

Source: HM Land Registry practice guide on private trusts of land

If you find you're joint tenants and that isn't what you want, you can change it while you're both alive. This is called severing the joint tenancy. One owner serves a written notice of severance on the other owner or owners, then applies to HM Land Registry for a Form A restriction so the register records the change. GOV.UK says there's no fee. This route is for registered land in England and Wales.

The timing matters. Once the first owner dies, the survivor already owns the whole home, so there's nothing left to sever.

Decide it together. It's your partner's home too. A notice arriving without a conversation can damage a relationship in a way no will can repair. Agreeing what each of you wants first also makes the next step, your will, much easier to get right.

Source: GOV.UK: change from joint tenants to tenants in common

Severing fixes one problem and can create another. Your share now goes where your will says, which puts a lot more weight on the will and on your partner's position.

Your will has to be right. If it was written on the assumption that the house would pass to your partner anyway, it may say nothing useful about your share or send it somewhere you no longer intend. If you have no will at all, the intestacy rules decide where your share goes. Their answer may not be the one you'd have chosen.

Your partner's security changes. If your will leaves your share straight to your children, your partner will own the home with them. Picture Jean living in her own home, part owned by her stepchildren. However good relationships are today, her security would then rest on their goodwill. That's Tom's problem in reverse.

A trust can protect both sides. The arrangement I'd ask about in a position like Tom's is leaving your share in your will on a trust that lets your partner live in the home for the rest of their life, with your children receiving your share afterwards. This is often called a life interest trust. Your partner keeps their home. Your children's inheritance rests on what you wrote rather than on anyone's goodwill. It needs careful drafting, because the wording decides what your partner can and can't do with the home.

Ways to hold the home and where each falls short

If your home is in joint names and either of you has children from an earlier relationship, I'd work through these questions in this order:

1. What you each want to happen to your share of the home when you die.
2. How you own it now, using the title register and your purchase paperwork.
3. Whether your will can actually deliver what you want, given how you own the home.
4. Where your partner would live and how secure they'd be if you died first.

If what you want and how you own the home don't match, that's the gap to fix. Fix it while you're both here, because once one of you has died the survivor owns the home and the choice has gone.

Want to do it yourself? Follow our step-by-step severance guide.

Not as written here. Scotland and Northern Ireland have their own property and succession rules, so the survivorship and severance steps above may not work the same way there. If your home is in either, check the rules where the property is before you act.