Joint Property Ownership
There are two ways in which property (in this context we are referring to real estate or land) can be held; either as beneficial joint tenants or tenants in common.
Where property is held as beneficial joint tenants the asset will pass automatically to the surviving owner(s) on death. This means that the asset does not form part of the deceased’s estate and as such cannot pass under a Will or via Intestacy. Note that assets such as joint bank accounts and joint shareholdings would also pass in the same way.
Tenants in Common means that each owner effectively holds their own share i.e: 50:50 and this can be gifted by Will or forms part of an estate under Intestacy. A property can be held in unequal shares but a trust deed should also be drawn up to support this with a restriction entered on the Land Registry title to the property.
If a property which is held as beneficial joint tenants a Grant of Probate would not be required in order that the asset can be passed to the surviving owner(s) and the deceased’s name can easily be removed from the Land Registry title. Whereas, a property which is held as Tenants in Common, Probate is required in order to pass the deceased share to the beneficiary.
A property held as beneficial joint tenants can be changed to tenants in common simply by the completion of a notice – a Declaration of Severance. However, changing a property from tenants in common to beneficial joint tenants is more complex.
For Inheritance Tax purposes regardless of how the property is held, the share that the deceased owned will still need to be declared and this would be taken into account.
A severance of tenancy must only be carried out for the correct reasons. For example; Life Interest – Protective Property Trusts are used within wills, for the trusts to work the property must be held as tenants in common or a further example is two friends own a property together and each would like to ensure their own chosen beneficiaries receive their respective share. Failure to advise on the need to sever a tenancy can lead to a negligence claim by a disappointed beneficiary or lead to increased costs if a property has been severed at no advantage to the beneficiary. If you have any concerns, please contact us and we will advise you accordingly.