What is the right of survivorship and how does it affect property during probate? Laura Abbott of Wright Hassall explains what you need to know about the right of survivorship.

What is the right of survivorship?

Where land or property is owned jointly by two or more persons then it can be owned in one of two ways:

• joint tenants
• tenants in common

During a property purchase the question will be asked of joint purchasers whether they want to own the property as joint tenants or tenants in common. It is usually asked at a time where the purchasers have large amounts of paperwork to get through and often couples will make a choice without much thought. However, the choice can have significant consequences in the long-term if they continue to own that property at the time of one of their deaths.

When a property is owned by two or more people as joint tenants and one owner dies, the property will automatically pass to the surviving owner(s). This is what is known as the right of survivorship. It also applies to bank accounts held in joint names. 

How does the right of survivorship affect joint tenants?

If a property is owned as joint tenants, then both owners together own 100 per cent of the property. Therefore, if one co-owner dies then the survivor will continue to own 100 per cent.

The owners do not each own a distinct share as joint tenants and so the surviving co-owner inherits by law, known as survivorship (or the right of survivorship). The surviving co-owner will then be able to dispose of the property as they wish during their lifetime or it will pass under the terms of their own will on their death (or the rules of intestacy if no will is made).

How does the right of survivorship affect tenants in common?

If the property is owned as tenants in common, each co-owner has a distinct share (commonly 50/50 but this could be a different split to reflect financial contributions). As such, this share in the property will form part of their estate (money, property and possessions) when they die and pass according to their will (or the rules of intestacy if no will is made).

Should you own a property as joint tenants or tenants in common?

Commonly, spouses and partners will own as joint tenants, while friends, siblings, trustees and business partners will own as tenants in common. However, with complex family structures increasing and high house prices, it can be dangerous for spouses or partners to own properties as joint tenants, as disputes can arise.

The family home is likely to be a valuable asset, but the first to die may not want it to pass to the surviving owner(s) automatically, for example if they have children from previous relationships. If a joint tenant has made a will that aims to leave their interest in the property, this wish can’t be carried out. Therefore, it is important to consider the question carefully upon purchase.

Can you change the ownership of a property from a joint tenancy to a tenancy in common?

It is possible to change a joint tenancy to a tenancy in common. Severing the joint tenancy will prevent the share of the first to die automatically passing by law to the survivor, and instead will mean they own as tenants in common. Their distinct share of the property (whether 50 per cent or otherwise) will then fall into their estate. This is called severance of joint tenancy.

The easiest way to sever a joint tenancy is by applying for a ‘Form A restriction’ by completing a Land Registry Form SEV and sending it to the Land Registry. You can change the ownership of a property from a joint tenancy to a tenancy in common without the other owners’ agreement.

According to the law, severance can also be achieved through conduct. It has been held that any "course of dealing" that is "sufficient to intimate that the interests of each of the joint tenants were mutually treated as constituting a tenancy in common". Case law provides numerous examples of this, but one common example is where both parties make mirror wills at the same time which provide for their share of the property not to be dealt with as a joint tenancy.

Do you need probate for joint tenancy properties?

A grant of probate will generally be needed to deal with a property that the deceased owned either in their sole name or jointly as tenants in common but not for property owned as joint tenants.

For joints tenants, the Land Registry can update the title to the property with a death certificate alone, as the survivor effectively already owned 100 per cent of the property. However, inheritance tax is payable on the value of the property (if applicable depending on the overall size of the estate) whether the property is owned as joint tenants or tenants in common.

About the author

Laura Abbott is an Associate in the contentious probate team at Wright Hassall and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

How to use a deed of variation to change someone's will after death

Video-witnessed wills to be made legal in England and Wales during coronavirus pandemic

What you need to know about lasting power of attorney (LPA)

Find out more

Joint property ownership (GOV.UK)

Form A restriction: application to enter (SEV) (GOV.UK)

Image: Getty Images

Publication date: 11 August 2020

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.