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Home / Making a Will / Leaving Property in a Will / Leaving Tenants in Common property

What is a tenancy in common?

When property is owned jointly by 2 or more people they are said to own the property either 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, confirmation can be obtained by obtaining “office copies” of the register from the Land Registry. 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.

What happens when one of the tenants in common dies?

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 when they die. If they do not make a will their share in the property will pass to their relatives in accordance with the rules of intestacy.

This is in contrast to the position relating to joint tenants where their share in the property passes automatically to the other joint tenant or tenants upon their death.

From an inheritance point of view is a tenancy in common better than a joint tenancy?

The question as to whether a tenancy in common is better than a joint tenancy, from an inheritance point of view, will depend upon the circumstances of each individual.

Unmarried couples may, for example, prefer to hold property as joint tenants to ensure that if one of the parties dies the surviving party will inherit the deceased’s share in the property.

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Single Will or Mirror Wills?

If you are a couple and wish to leave all your assets to each other then you could save money by making  Mirror Wills. You can also use Mirror Wills if you whish to leave your estate to the same beneficiaries. 
If you wish to leave different legacies, appoint different executors or you would like to specify individual funeral wishes then you will need to make two Single Wills.
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