Jointly owned property and wills

This is a really important question and the answer depends on how the property is held jointly. There are two forms of joint ownership in England and Wales and they have very different consequences on death.

Joint tenants:

Where property is held as joint tenants, the right of survivorship applies. 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 disposed of by will. This is the case regardless of what the will says. Even if the will purports to leave "all my property" or specifically names the jointly held property, the right of survivorship overrides the will.

This is the most common way for married couples and partners to hold property together.

Tenants in common:

Where property is held as tenants in common, each owner holds a distinct share in the property, even though they co-own it. That share does form part of their estate on death and can be disposed of by will. If there is no will, it passes under the intestacy rules.

How to find out which applies:

The form of co-ownership will usually be recorded at the Land Registry. If a restriction was entered on the title register (typically a Form A restriction stating that no disposition by a sole proprietor can be registered), this indicates a tenancy in common. If there is no such restriction, the property is most likely held as a joint tenancy.

You can also check the transfer deed (TR1) which should indicate whether the transferees held as joint tenants or tenants in common.

Practical points:

1. If a person wants their share to pass under their will rather than by survivorship, they need to sever the joint tenancy during their lifetime. This converts the joint tenancy into a tenancy in common. Severance can be done by serving a written notice on the other joint tenant under section 36(2) of the Law of Property Act 1925. A Form A restriction should then be entered at the Land Registry.

2. If someone has already died and the property was held as joint tenants, there is generally nothing that can be done to alter the position. The surviving joint tenant simply needs to register the death and apply to remove the deceased's name from the title.

3. For inheritance tax purposes, the deceased's share of a jointly held property is included in the value of their estate regardless of whether it was held as joint tenants or tenants in common. So even though the property passes outside the will by survivorship, it is still potentially liable to inheritance tax.

If you can tell me more about the specific situation you are dealing with, I can give more tailored guidance on the position and options.