Understanding Right of Survivorship

The right of survivorship means that when one joint owner of a property dies, their interest passes automatically to the surviving owner or owners, whatever their will says. In England and Wales, it applies only where the property is owned as joint tenants.

If you own as tenants in common instead, there is no right of survivorship: each owner has their own share, which passes under their will or, if they have no will, under the intestacy rules. Your title register at HM Land Registry will usually show which type of ownership applies. If you are a joint tenant and want to leave your share to someone else, such as children from an earlier relationship, you can change to a tenancy in common by severing the joint tenancy.

Right of Survivorship

The right of survivorship is a legal principle associated with joint tenancy. When one joint tenant dies, their interest in the property automatically transfers to the surviving joint tenant(s). A joint tenant cannot leave their share in a property that they own as a joint tenant in their will.

Joint Tenants

Joint tenancy involves two or more individuals holding equal shares in a property. Upon the death of one joint tenant, their interest in the property is automatically passed to the surviving joint tenant(s). This process avoids the often lengthy and expensive probate procedure and simplifies the transfer of ownership. However, joint tenancy requires all tenants to acquire their interest in the property at the same time and through the same deed. This form of ownership requires unanimous consent for significant decisions regarding the property, such as selling or refinancing. Additionally, a joint tenant cannot pass on their share of the property through a will, as the right of survivorship takes precedence.

Tenants in Common

Tenancy in common allows two or more individuals to hold ownership interests in a property without the requirement for equal shares or simultaneous acquisition. Each tenant in common owns a specific share of the property, which can be equal or unequal. Unlike joint tenancy, there is no right of survivorship. Upon the death of a tenant in common, their share of the property becomes part of their estate and is distributed according to their will or intestacy laws. This flexibility allows tenants in common to sell, transfer, or pass on their share independently of the other co-owners. However, this also means that the share must go through probate, which can be time-consuming and costly. The differing ownership interests and intentions for the property can also lead to conflicts among co-owners.

The Importance of Making a Will for Tenants in Common

For those holding property as tenants in common, having a will is essential. Since there is no right of survivorship, the deceased tenant’s share of the property will be distributed according to their will. Without a will, the share will be subject to intestacy laws, which may not align with the deceased’s wishes. A will allows a tenant in common to specify who should inherit their share of the property.

Conclusion

Understanding the differences between joint tenancy and tenancy in common, especially the implications of the right of survivorship, is critical for property owners. While joint tenancy offers the benefit of a simplified right of survivorship, tenancy in common provides greater flexibility and control over individual ownership shares. Regardless of the form of ownership, having a will is crucial for tenants in common to ensure that their share of the property is distributed according to their wishes.

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