Wills and jointly owned property

3rd April 2020

Wills and jointly owned property

Where two or more persons own a property as Joint Tenants, the property passes to the survivor or survivors.

Although very unlikely, if a couple were to die in circumstances where it is uncertain which one of them survived the other, they are deemed to have died in order of age seniority.

If this were to happen, the whole value of the property will form part of the younger person’s Estate. The property will then pass to the Beneficiaries named in the younger person’s Will, or, if there is not a Will, to the person or persons entitled to inherit his or her Estate under the Rules of Intestacy.

Where a property is owned as Joint Tenants, the parties concerned should decide and agree who they wish to inherit if they were to both die together and name those Beneficiaries in their respective Wills. Obviously this is much more important if the couple concerned do not have children.

In contrast, if you hold a property as Tenants in Common and a couple both died, the property will not pass to the younger person’s Estate automatically.

If you hold a property as Tenants in Common, the property may be held equally or, for example, one of you owns 60% and the other 40%. In this situation the respective shares will pass in accordance with their respective Wills or, again, under the Rules of Intestacy. However, to avoid any disputes with regard to ownership, a Trust Deed should be drawn up setting out the shares at the time and include provisions as to what should happen on death, or, if the relationship breaks down.  This protects their individual interests in the property.  If, rather than death, the relationship breaks down this means the property cannot be sold or encumbered without gaining consent from both parties.

It is always preferable to have a Will drawn up professionally should the unexpected happen, to ensure that the person or persons you wish to inherit do indeed inherit.

Just to clarify:

When you own a property as Joint Tenants you have equal rights to the whole property – the property automatically passes to the surviving owner(s) when one of you dies. The property ownership cannot be passed to someone else under your Will.

When you own a property as Tenants in Common you each hold a defined share of the property. The property will not automatically pass to the surviving owner(s) when one of you dies. The property ownership can be passed to someone else under your Will.

If you would like to make a Will, contact Sally Pryke 01473 826306 on [email protected].

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