Joint tenants or tenants in common? How to check, and why it matters (England and Wales)

13 September 2026 · Inherit Vault

Your will can't give away a house you own as joint tenants. Whatever the will says, your share passes straight to the other owner the moment you die, and nobody needs your executor's permission. Most couples never chose this. It just happened in the conveyancing.

Two ways to own the same house

In England and Wales there are two options, and they behave nothing alike. As joint tenants you have equal rights to the whole property. It goes automatically to the other owners when you die, and you can't pass your ownership on in your will. As tenants in common you can own different shares, your share doesn't automatically go to the other owners, and you can leave it to whoever you like. Same house, same two names on the deeds, completely different result.

Survivorship gets there first

That automatic transfer is called survivorship, and it's the bit that catches people out. It isn't part of the estate, so it doesn't wait for probate and it doesn't follow the will. Die as a joint tenant leaving a will that says "my half of the house to my daughter" and the gift simply fails. There's nothing left to give. Everything else that happens to a home after a death is covered here.

How to check which one you are

Go to HM Land Registry's Search for land and property information service. The property summary is free, and the title register costs £7 to download. The register is the one you want. Look in the proprietorship register for a "form A restriction", the entry that stops a lone surviving owner selling without appointing a second trustee. Restriction there, you're tenants in common. No restriction, you're almost certainly joint tenants. Official copies by post cost £11. You don't need one just to look.

Changing it is free

If all the owners agree, you fill in form SEV to register that form A restriction and send it to HM Land Registry's Citizen Centre. There's no fee. That's the whole job, one of the few bits of estate admin nobody charges for.

If the other owner won't play along

You can still do it on your own. Section 36(2) of the Law of Property Act 1925 lets any joint tenant sever the joint tenancy in equity by giving the others "a notice in writing". They don't have to agree, sign it, or even reply. The Land Registry just wants proof you served it. Easiest is the notice signed by everyone. Failing that, send a letter certifying that you handed it over, left it at their last known UK address, or posted it recorded delivery and it didn't come back. Useful, and slightly brutal, in a marriage that's going wrong.

The legal title never actually splits

The same section of the 1925 Act bans severing the legal estate, so on paper you and your co-owner stay joint trustees of the property. What you're splitting is the beneficial interest underneath, the part that decides who owns what value. That's why the change shows up as a restriction rather than a fresh set of deeds.

Unequal shares need writing down

Tenants in common can hold any split: half each, 70/30, 90/10. The form A restriction doesn't record the shares. It only flags that shares exist. So if one of you put in a bigger deposit or paid for the extension, record it in a declaration of trust at the same time. Without one, the argument later comes down to evidence, and a shoebox of receipts from 2011 is not a plan.

Where it goes wrong: second marriages

Picture a couple who each have children from a first marriage. They own as joint tenants, and both leave wills giving everything to their own kids. On the first death the whole house goes to the survivor by survivorship. The survivor's will then decides where it ends up, and the first person's children get nothing. Tenants in common plus a life interest trust is the usual fix, and it's exactly the trap set out in second marriages and blended families.

Dying without a will doesn't rescue it either

Survivorship still happens first, before the intestacy rules get anywhere near the house. Those rules give a surviving husband, wife or civil partner all the personal belongings, the first £322,000 and half of whatever's left, with the children taking the other half. All perfectly irrelevant to a property that changed hands the instant of death.

The tax angle

Severing doesn't create or remove an inheritance tax bill on its own. Transfers between spouses and civil partners are exempt either way. It matters for the second death. HMRC looks at each person's estate separately as each one dies, and that includes their share of a jointly owned home. The residence nil rate band of up to £175,000 only applies where a home goes to direct descendants.

One thing it doesn't change is the mortgage. Severing decides who inherits, not who owes, and joint borrowers stay liable to the lender for the whole balance either way.

Ten minutes on the Land Registry site tells you which of the two you are, and a free form fixes it if the answer's wrong. The step people skip is the third one: writing down what you found. The title number, whether there's a restriction, where the declaration of trust lives, who holds the will. A house that passes by survivorship is easy for your family. A house nobody can prove the shares in is anything but.

Leave your family a map, not a mystery.

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