Making Sure Your Home Stays Home: Will Planning for Property Owners

When a property is owned as either joint tenants or tenants in common, its transfer upon the death of an owner differs significantly. Understanding these differences is key to ensuring the property passes according to your wishes, particularly in the case of tenants in common, where additional considerations such as a right of residence may need to be included in your Will.

Joint Tenants

In a joint tenancy, all owners hold an equal share of the property, and the share of a deceased joint tenant automatically passes to the surviving joint tenant(s) due to the right of survivorship. This means that, regardless of what is outlined in the deceased’s Will, their share of the property does not become part of their estate. Instead, it transfers directly to the surviving joint tenant(s). For example, if two people own a home as joint tenants and one passes away, the surviving owner automatically assumes full ownership of the property.

Tenants in Common

In contrast, tenants in common each own a specified portion of the property, which can be equal or unequal. When one owner passes away, their share of the property becomes part of their estate and passes according to the terms of their Will or, if there is no Will, according to the laws of intestate succession. There is no right of survivorship in this arrangement, so the deceased’s share does not automatically go to the surviving tenant. For instance, if two people own a home as tenants in common and one dies, their share will go to their heirs or beneficiaries as specified in their Will.

Owning property as tenants in common can create complications, especially for the surviving owner. If the deceased’s share passes to heirs who are not interested in allowing the surviving owner to remain in the property, they could force the surviving person to move out. This can be especially challenging if the surviving owner is a spouse or partner who still wishes to live in the home which they part own.

Right of Residence

To prevent such issues, it is essential to include a right of residence in the Will when the property is owned as tenants in common. A right of residence clause grants the surviving owner the legal right to remain in the property for a specified period or for their lifetime, even if they no longer hold an ownership share. This ensures the surviving owner can continue living in the home without the risk of being forced out by the new owners, who inherit the deceased’s share. For example, the Will could specify that the surviving spouse has the right to live in the property for as long as they choose, regardless of the change in ownership but restrictions can be placed upon their tenancy to protect the new owners share who await the realisation of the property.

Conclusion

The key distinction between joint tenants and tenants in common is that joint tenants benefit from the right of survivorship, which automatically transfers the deceased’s share to the surviving joint tenant. On the other hand, tenants in common must rely on their Will or intestacy laws for the distribution of the deceased’s share. For those holding property as tenants in common, it is crucial to include a right of residence in the Will to ensure the surviving owner’s continued right to live in the property. By doing so, you can avoid potential conflicts and provide peace of mind during what can already be a difficult time.

If you are a property owner who is looking to draft a will, our private client team at Farleys can help. To discuss your requirements, please call 0845 287 0939, get in touch by email, or use the online chat below.