Leaving jointly owned property in your will
The law relating to jointly owned property
Property can be jointly owned in one of 2 ways. The joint owners can own the property as “joint tenants” or as “tenants in common”.
How do I know whether I am a joint tenant or a tenant in common?
If you are unsure whether you own property as joint tenants or as tenants in common, if the property is registered with the Land Registry, as most properties are these days, clarification can be sought by obtaining “office copies” of the register. If the property is held as tenants in common the office copies will contain what is known as a “Form A restriction” which reads as follows:
“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”.
The title documents relating to the property will also record whether the property was purchased or transferred to the co-owners as joint tenants or tenants in common. However, the manner in which the property is owned may have changed since the title documents were prepared. For this reason it is usually necessary, in the case of registered property, to obtain clarification by obtaining office copies from the Land Registry.
Tenants in common
Where property is owned by tenants in common each co-owner is free to leave his or her share of the property to who ever they wish.
Joint tenants
Where property is owned by joint tenants upon the death of one of the owners their share passes automatically to the other joint tenant or tenants. This is the case even if the owner has made a will leaving his or her share of the property to another person.
If a joint tenant wishes to leave his or her share in the property to someone other than the other joint tenant it will be necessary for him or her to “sever” (bring to an end) the joint tenancy. This is done by one of the co-owners serving a “notice of severance” on the other co-owner of the property. If the property is registered at the Land Registry an application for a “Form A restriction” using the Land Registry form “SEV”, should be sent to the Land Registry.
When a joint tenancy is severed the co-owners become tenants in common and at that stage will be free to leave their share of the property to who ever they wish.