Property passing by survivorship on death

Joint tenancy and what happens on death:

Where a property is held as joint tenants, the key legal principle is the right of survivorship, known in law as the ius accrescendi. This means that when one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant or tenants by operation of law. It does not form part of the deceased's estate and cannot be given away by will.

This has several important practical consequences.

1. The property passes outside the will. Even if the deceased's will says "I leave my house to my nephew," that provision has no effect on a jointly held property. The surviving joint tenant takes the whole legal and beneficial interest regardless of what the will says.

2. Probate is not needed to deal with the property itself. The surviving joint tenant simply needs to register the death with HM Land Registry by submitting a certified copy of the death certificate and an application to remove the deceased from the register of title. This is done using Form DJP if the property is registered land.

3. The property does not pass through the estate for distribution purposes, but it is important to note that for inheritance tax purposes, the deceased's share of the property is still treated as part of their estate and may be subject to IHT. This catches some people out.

4. If the deceased wanted to prevent survivorship, they would have needed to sever the joint tenancy during their lifetime, converting it to a tenancy in common. Severance can be done unilaterally by serving a written notice under section 36(2) of the Law of Property Act 1925. Once severed, each party holds a distinct share which can then be left by will.

Important distinction to keep in mind:

This is fundamentally different from a tenancy in common, where each owner holds a defined share. On death, a tenant in common's share does form part of their estate and passes according to their will, or under the intestacy rules if there is no will.

Points that sometimes arise:

If there is any doubt about whether the property was held as joint tenants or tenants in common, the title register at HM Land Registry should clarify this. A restriction on the register stating that the survivor cannot give a valid receipt for capital money is the standard indicator that the property is held as tenants in common. If no such restriction appears, joint tenancy is the default position.

If a joint tenant attempted a deathbed severance, there can be disputes about whether the notice was properly served before death. Timing matters, and this can lead to litigation.

If you are dealing with a specific situation, the key facts to establish are whether the property was definitely held as joint tenants, whether any severance notice was served before the death, and whether there are any inheritance tax implications to address.