Joint Home Owner: Joint Tenant or Tenants in Common?

Probate Answers: Death of Joint Home Owner.

There are two types of joint property ownership – see here for more details, but the potted version is:

1) Death of a Joint Home Owner as Joint Tenant

2) Death of a Joint Home Owner as Tenants in Common

Here, the owners each own a proportion of the property – usually half, but not necessarily.  If one dies, they can leave their share in their Will, subject to any restrictions in the original agreement which set up Tenants in Common. This arrangement is usual where people have Wills commonly called Protective Property Trust Wills: here the share of the deceased is still available for the occupation of the survivor, but actually passes under the terms of the first to dies’ Will eventually.  Details of how that is arranged vary from Will to Will, depending on the views of the advisor and of the couple. The intention is usually to secure the accommodation for the use of the survivor for as long as it is needed but we are not here to give detail advice (though we can introduce you to suitable advisers.)Whilst the proportions owned are commonly half each, there is no restriction on what they actually are, and where one partner puts down the bulk of the purchase price, you could as an example have a situation where one put down half of the purchase price and it was agree that the rest would be shared equally, so it would be 75% to 25%.  In a simple 50/50 case only a severance of tenancy is needed, as that is the default position.  Anything different will require a Deed of Trust detailing the exact arrangements.

It depends on the terms under which the children have the house, if it is under a Court Order it is straightforward, if not, it could get very messy if it is not agreed in writing somewhere.If the house is still owned jointly with the ex-wife, she may well inherit it automatically, depending on whether it is owned as joint tenants or tenants in common.

What does ‘Tenants in Common’ and ‘Joint Tenants’ mean?

When ownership of a property is shared, the ‘Joint Ownership’ can be either:as ‘Joint Tenants’ (or ‘Beneficial Joint Tenants’)as ‘Tenants in Common.’

Joint Tenants (or Beneficial Joint Tenants) – the most common form of home ownership.As Joint Tenants, all co-owners effectively own 100% of their home while they are alive and NONE of it if they die leaving a survivor. So if two people own their home property as Joint Tenants and one of them dies, the survivor automatically becomes the sole 100% owner of the property and the deceased (and the deceased’s estate) owns NOTHING. This means that the deceased cannot leave the property in his/her Will – as he/she no longer owns any part of it after death.

Despite that fact that they deceased loses their share on death the Taxman still treats the deceased as owning half of the property for Inheritance Tax Purposes, which can be unfortunate. The survivor is then treated as having inherited half of the property.

There are all sorts of reasons for setting properties up as Tenants in Common rather than Joint Tenants which we will be happy to advise on if you ask us to write your Last Will and testament.

Tenants in CommonAs Tenants in Common, each co-owner owns a specific proportion of the property, adding up to 100%. This means that if one of the co-owners dies, his/her share of the property becomes part of his/her estate and he/she can leave their share in their Will to whomever they chose.

How do we know if we are Joint Tenants? To find out if you are Joint Tenants, you will need to check on your Title Register Document. If you have a mortgage then this will be held by your mortgage company, but for a few pounds you can now check your Title Register Document online in the “Find a Property” section of the Land Registry website at Title Register

The document will show the names of the people that own the property and, if you are tenants in common will also have wording similar to: “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court“. If there is no such wording in the Title Register Document then you are almost certainly joint.

Quick Tip: When you’ve got your Title Register Document, download it and print it out: it also tells you your Land Registry Administration Area and your property’s Title Number – both of which are required for severing the Joint Tenancy. Once you have checked that side out, then the Rules of Intestacy would apply.

This is from the Government website:

HMRC Inheritance Tax: Customer Guide .

Then just follow the instructions online (we can do it for you but it is much cheaper to DIY!)

If this is not correct return to page 14 of the Customer Guide.

If this is correct, the estate passes as follows:

The surviving spouse or civil partner receives the chattels, a statutory legacy of £250,000 (£125,000 if the death was before 1 February 2009) and half of the residue b(again, this used to be different).

The children receive the other half of the residue in equal shares. If any of the deceased’s children have died leaving children of their own, then those children will share equal proportions of their parents’ share. Example: parent would have inherited £100,000 and there are four children: each would receive £25,000 once over 18.

Note – If the estate is less than £250,000 (£125,000 if the death was before 1 February 2009), the deceased’s surviving spouse or civil partner will receive the whole of the estate.

So it is pretty clear either way that he needs to leave a Will or a legacy of confrontation, uncertainty and dispute.

Sorry to be blunt!

Many couples in the same situation who have NOT married are in an even worse situation and may end up with nothing at all without Court action against the children!!!

The Probate Department Ltd – low-cost Probate help.

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