Jointly Owned Property and Wills: If you own your property as Joint Tenants with another person or people, you may decide that you want to change the ownership, so it is then held as Tenants in Common instead. This will enable you to gift your share of the property to someone other than your co-owner(s) within your Will. This is important in cases such as estrangement between co-owners of a property, or when people co-own a property for business purposes, but do NOT wish for their respective shares of the property to pass to their co-owners(s) for family reasons for instance.
Let’s first have a look at the difference between owning a property as Joint Tenants and Tenants in Common.
Joint Tenancy
If you own your property as Joint Tenants with another person or people, this means that all owners hold 100% of the property together, and it is NOT divided into distinct shares. You all have equal rights to the WHOLE property, and if the property is sold, you will each be entitled to an equal share of the net sale proceeds.
A Joint Tenancy creates “Rights of Survivorship”. The result is that when one co-owner dies, the remaining co-owner(s) will automatically own the WHOLE property. This means that a Joint Tenant CANNOT gift their interest in the property to anyone other than their co-owner(s) in their Will.
Tenants in Common
If you own your property as Tenants in Common, then you will each have a distinct share in the property. This is often an equal share, but it is also possible to hold the property in unequal shares. An example of this is when people purchase a property together and contribute different amounts towards the deposit.
Under a Tenancy in Common, each co-owner can deal with their share in the property separately, allowing them to gift their share to their own beneficiaries in their Will. This also creates more opportunities for planning to protect a share of a property by using trusts in their Will.
For example, after our death, most of us would NOT wish for our surviving spouse to remarry and unintentionally pass what was our share of a property to their new spouse, rather than our shared children. Sadly, this is an increasingly common occurrence because surviving spouses do not always realise that their remarriage automatically invalidates all pre-existing Wills. Thereafter, without a valid Will, most (if not all) of a surviving spouse’s estate passes to their NEW spouse after they have remarried, rather than their children, INCLUDING WHAT THEY PREVIOUSLY INHERITED FROM US.
How can I Check how my Property is Jointly Owned?
A local and professional Will Writer can confirm how you jointly own your property.
Can a Property Ownership be Converted from Joint Tenants to Tenants in Common?
Yes.
To sever a Joint Tenancy so that a property is then held as Tenants in Common instead, a Notice of Severance would need to be completed and signed by ALL co-owners. However, if co-owners are estranged, then one may unilaterally undertake this and simply and officially notify the other co-owners (please see below).
For properties already officially registered with HM Land Registry (HMLR), then a separate document would also be completed and submitted to HMLR who will then update the Land Register accordingly.
Do I have to instruct a conveyancer to carry out the severance?
No.
The severance can be carried out by your local and professional Will Writer. However, if you would prefer to instruct a conveyancer, then you may do so, although this is usually a much more expensive method,
Must a Conversion be Mutually Agreed between Co-Owners?
No.
There may be a situation where a property is owned as Joint Tenants by spouses or civil partners. However, they are estranged, and one co-owner wishes to sever the Joint Tenancy. This can be done and is otherwise known as UNILATERAL severance.
The willing co-owner would need to serve a written notice of the change (Notice of Severance) to the other(s), complete the necessary HMLR document, prepare any supporting documents, then forward it all to HMLR. The supporting documents would usually be a letter certifying that one co-owner has officially given notice to the other, or had it delivered to their last known home or business address (if they have one) in the UK.
The willing co-owners would also need to confirm how the notice was served. We advise Royal Mail “Signed For” service, so there is proof that the notice was served.
Reasons for unilateral severance are NOT required within any notice(s) served.
Is there a Fee to Submit Documents to HMLR?
There is NO fee for submitting Land Registry documents to HMLR, however conveyancing solicitors will usually charge fees for their work.
Is it the Same Process if my Property is NOT registered with HM Land Registry (HMLR)?
No.
If your property is not registered with HMLR, then you can only complete the notice of severance element of the process. The HMLR document is only completed for properties already registered with HMLR.
What Happens if I Die Before the Land Register is Changed?
If a notice of severance has already been signed, then this evidences your intention to own a property as Tenants in Common. It is the notice of severance and not the update to the HM Land Register which confirms your intention to own a property as Tenants in Common.
If, however, no notice of severance was signed before your death, then a property would still be owned as Joint Tenants and your share would automatically pass to the surviving co-owner(s).
What if the Land Register shows my Maiden Name?
There is NO requirement to change the Land Register to reflect your married name before property ownership is converted to Tenants in Common.
The appropriate documentation can be completed in your married name, however HMLR will require proof of the name change i.e., a marriage certificate.
How does this all Relate to my Will?
Once you own your share of a property as a Tenant in Common, it is very important that you also confirm whom you wish to inherit your share of a property after your lifetime within your locally and professionally created Will. Otherwise, your share of a property may still pass under the Law of Intestacy (when there is no legally valid Will) to someone other than your desired beneficiary or beneficiaries.
For further details WITHOUT Consultation Fees or Obligation, please visit TRF Wills.
TRF Wills (TRF) was created by Michael Cotterill in 2005. He is a member of the Society of Will Writers and registered with the Information Commissioner’s Office.