When a co-owner of a joint property dies, what happens to their share depends entirely on how the property was legally held — and the answer can be devastating for family members who assumed they would inherit. In England and Wales, jointly owned property is held in one of two ways: as joint tenants or as tenants in common. The distinction between these two forms of ownership is one of the most consequential — and least understood — in inheritance law.
Getting this wrong costs families their homes and their inheritances every year.
Joint Tenancy: The Right of Survivorship
Under a joint tenancy, all owners hold the property together as a single unit. There are no separate, defined shares. When one joint tenant dies, their interest in the property passes automatically to the surviving co-owner or co-owners by what the law calls the right of survivorship. This happens outside the will entirely. It does not matter what the deceased wrote in their will — if the property was held as joint tenants, the surviving owner takes the whole property and there is nothing any other beneficiary can claim.
If a married couple in England and Wales hold their family home as beneficial joint tenants and one spouse dies, the surviving spouse becomes the sole owner automatically. The deceased’s share does not form part of their estate for probate purposes, and their will cannot redirect it to anyone else.
This creates serious problems in blended family situations. Imagine Alice and Bob became partners later in life, each having children from a previous relationship. They bought a house together as joint tenants. When Bob died, his share of the property automatically passed to Alice — she then owned the property in its entirety. Bob’s children received nothing from the property, regardless of what his will said.
This outcome is not a legal error. It is the law operating exactly as intended. But it is also one of the most common triggers for inheritance disputes in England and Wales — particularly in second marriages and blended families where children from a first relationship expected to inherit a share of the family home.
Tenancy in Common: Defined Shares That Can Pass Under a Will
Under a tenancy in common, each co-owner holds a specified share of the property. Those shares can be equal or unequal — for example, 50/50 or 70/30. If one owner dies, their share does not automatically pass to the other owner. Instead, it passes to whoever they have named in their will, or under the rules of intestacy if they died without one.
This is a fundamentally different legal arrangement and produces entirely different outcomes on death. A person who holds their home as a tenant in common can leave their share to their children, a trust, or anyone else they choose. The surviving co-owner has no automatic claim to that share.
To determine how a property is held, the starting point is the Land Registry title — the official copy showing the legal owners. However, the TR1 form used on purchase contains at box 10 an express declaration of trust, which will determine how the property is actually held. The conveyancing file may also contain attendance notes and correspondence clarifying the parties’ intentions at the time of purchase.
Many families only discover how a property was held after a death — and by then, for joint tenants, it is too late to change the outcome.
Severing a Joint Property
A joint property can be converted into a tenancy in common at any time during the owners’ lifetimes. This is called severing the joint tenancy, and it is a straightforward process that does not require the other owner’s agreement.
Changing from joint tenants to tenants in common is called a severance of joint tenancy and requires applying for a Form A restriction at the Land Registry. You do not need the other owner’s permission. Once the restriction is registered, the right of survivorship no longer applies. Each owner can then leave their share to whoever they wish under their will.
The problem arises when a severance is contemplated but never completed — or when one co-owner severs the joint tenancy without the other’s knowledge, creating a dispute about what was intended. Equally, a severance that is carried out incorrectly or not registered at the Land Registry may be ineffective, leaving the joint tenancy intact and the survivorship rule in play.
Where a joint tenancy is severed, a deed of trust is strongly advisable to record the agreed shares and what should happen if the relationship changes or one owner wishes to sell. Without one, disputes about the proportions of ownership are decided by a court applying principles of resulting and constructive trusts — an expensive and uncertain process.
When Families Dispute Joint Property
Property disputes following a death commonly take several forms, each with distinct legal routes.
The survivorship dispute. A beneficiary under the deceased’s will argues that the property should not have passed automatically to the survivor — either because the joint tenancy was never properly established, because it had been severed before death, or because there was an agreement that the deceased’s share would pass differently. These cases require careful examination of the original conveyancing documents, the Land Registry title, and any subsequent correspondence.
The beneficial interest dispute. One person is the registered legal owner, but another person claims to have contributed to the purchase price or mortgage and is therefore entitled to a share of the beneficial interest. This is particularly common in family situations where a parent and child buy a property together, or where an unmarried partner contributed financially but is not on the title. These claims are brought under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).
TOLATA allows individuals who believe that they retain an interest in a property to bring a claim to resolve an ownership dispute. In the event that the parties are unable to amicably resolve the dispute, they are able to take legal action and apply to the court for a declaration of trust — which determines their equitable share in the property.
The proportionate share dispute. The property is held as tenants in common, but there is no deed of trust recording the agreed shares. One co-owner claims 50 per cent; the other claims the split should reflect their respective financial contributions. Courts will look at who paid the deposit, who paid the mortgage, and what the parties actually intended at the time of purchase to determine the correct split.
The TOLATA sale dispute. Co-owners cannot agree on whether to sell the property following a death. One party — typically a beneficiary of the deceased’s share — wants to realise their inheritance. The surviving co-owner wants to remain in the property. Under TOLATA, the court has power to step in when there is disagreement over property. It can make decisions about whether a property should be sold, who should occupy it, and how to protect the interests of each party. The court does not automatically force a sale but has the tools to make legally binding decisions when owners cannot agree.
The Professional Negligence Dimension
A significant proportion of joint property disputes have their roots in negligent conveyancing advice at the time of purchase. A reasonably competent solicitor would ensure that the client understands why the choice between joint tenancy and tenancy in common is important — for instance, how it affects inheritance and shares of the property. Failing to explain the difference properly, or providing only a cursory note that clients do not truly understand, is likely to be a breach of the solicitor’s duty of care.
Where a family has suffered a financial loss because a solicitor failed to advise properly on the form of co-ownership — for example, a child from a first marriage who has lost their expected inheritance because the property passed by survivorship to a step-parent — a professional negligence claim against the conveyancing solicitor may be worth pursuing alongside or instead of a property dispute claim.
Inheritance Act Claims and Joint Property
Even where property passes outside the estate by survivorship, a person who has been financially dependent on the deceased and has received no provision from their estate may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Under section 9 of the Inheritance Act, the court has the power to treat the deceased’s severable share in jointly held property as part of the estate for the purposes of an Inheritance Act claim. This is a significant provision that is frequently overlooked. It means that even where property has passed automatically by survivorship to the surviving co-owner, that share can be brought back into the calculation of what financial provision a claimant should receive — subject to the court’s discretion.
An Inheritance Act claim must be made within six months of the grant of probate. Missing this deadline is fatal to the claim in all but exceptional circumstances, so anyone contemplating this route must seek legal advice immediately.
FAQs
Can a will override the right of survivorship on a joint tenancy?
No. The right of survivorship takes precedence over any will. When a joint tenant dies, their share passes automatically to the surviving co-owner as a matter of law, and no provision in a will can redirect it. The only way to preserve the ability to leave your share to someone other than the co-owner is to sever the joint tenancy during your lifetime, converting the ownership to a tenancy in common, and then making or updating your will accordingly.
What if one co-owner paid significantly more towards the purchase price — does that affect their share?
It depends on how ownership was recorded. If the property is held as joint tenants, the law presumes equal ownership regardless of financial contributions. If it is held as tenants in common and a deed of trust was drawn up recording unequal shares, that deed governs. If there is no deed of trust but one party contributed substantially more — by way of deposit, mortgage payments, or improvements — a beneficial interest claim may be possible under the principles of resulting and constructive trusts. These claims require evidence of financial contribution and, where applicable, a common intention between the parties that ownership should reflect those contributions.
What happens to a jointly owned property if the co-owners were unmarried and one dies without a will?
If the property was held as joint tenants, the surviving co-owner inherits the deceased’s share automatically by survivorship — regardless of the absence of a will. If the property was held as tenants in common, the deceased’s share passes under the rules of intestacy. For unmarried couples, intestacy rules provide no automatic right of inheritance for a cohabiting partner. The share would pass to the deceased’s children, parents, or other relatives depending on their family circumstances. This is one of the most common sources of financial devastation for unmarried couples and a strong argument for both making wills and reviewing the form of co-ownership whilst both parties are alive.
Conclusion
How property is held between co-owners is one of those decisions that most people make at the moment of purchase, on professional advice, without fully understanding the long-term consequences. When the relationship is a first marriage between people with no children from prior relationships, joint tenancy is usually uncontroversial. In any more complex situation — a second marriage, a blended family, an unmarried couple, co-ownership between siblings or business partners — tenancy in common with a properly drafted deed of trust is almost always the more appropriate arrangement.
If you are dealing with a property dispute following a death, the nature of the co-ownership is the first and most important question to answer. Everything else — who can claim what, under what legal route, and within what time limit — flows from that.
Contest a Will Today has more than 30 years of experience advising families on contentious probate and property disputes across England and Wales. If you believe that jointly owned property has passed in a way that does not reflect the deceased’s intentions — or that you have a beneficial interest in a property that is being denied — call us for a free initial conversation, or visit contestawilltoday.com.
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With over 30 years of experience across civil litigation and dispute resolution, DS Bal brings a deep, broad understanding of the legal process to every case. His background spans complex disputes involving individuals, families, and estates. LinkedIn
