A home can be the largest asset you own, yet many couples do not know how it is legally held. That matters greatly when making tenants in common wills. If you own a property as tenants in common, your share will not automatically pass to the other owner when you die. Your will is where you decide who should receive it instead.
This can be a sensible arrangement for couples with children from previous relationships, unmarried partners, people contributing unequal amounts to a home, or anyone who wants more control over what happens to their share. But it also means you need to make a clear will. Without one, the rules of intestacy decide who inherits – and the result may not reflect your wishes.
What does tenants in common mean?
When two or more people own a property in England and Wales, they usually own it either as joint tenants or tenants in common. The names can sound confusing, but the difference is straightforward.
Joint tenants own the whole property together. When one owner dies, their interest passes automatically to the surviving owner or owners. This is called the right of survivorship. A will does not override it.
Tenants in common each own a separate beneficial share. This might be 50/50, but it does not have to be. One person may own 60% and the other 40%, for example, particularly where they paid different deposits or contributed different amounts towards the purchase price.
When a tenant in common dies, their share becomes part of their estate. It can pass under their will to a spouse, partner, child, another family member, or a trust. This is why the wording of your will deserves careful thought.
The property may still be registered in both names, and the owners must generally act together to sell or transfer it. However, the value of each person’s share belongs to their own estate. A declaration of trust can record the proportions each person owns and is especially useful where ownership is not equal.
Why tenants in common wills need clear instructions
Leaving your share of the house to someone sounds simple. In practice, you should consider what that decision means for the people left behind.
For example, imagine that Priya and Mark are unmarried and own their home as tenants in common in equal shares. Priya wants Mark to remain living in the home if she dies, but ultimately wants her half to pass to her daughter. If Priya simply leaves her share outright to her daughter, Mark and her daughter could become co-owners. They may work things out well, but the arrangement could leave both parties with difficult decisions about bills, repairs, a future sale, or whether Mark can remain in the property.
A will can instead provide a right for Mark to live in the property for a defined period or for the rest of his life, with Priya’s share eventually passing to her daughter. This is often arranged through a trust in a will. It can offer reassurance, but trusts bring responsibilities for trustees and may not be suitable for every estate. Where a property, family circumstances or intended trust are complicated, obtaining tailored legal advice is wise.
The key point is that a will should deal with both ownership and occupation. Who receives the share is one question. Whether someone needs the right to stay in the home is another.
When this arrangement may be useful
Tenants in common can give homeowners flexibility, but it is not automatically the best choice. It often suits people whose priorities extend beyond simply leaving everything to the surviving co-owner.
It may be worth considering if you are buying with a partner but contributing different amounts, have children from an earlier relationship, want to preserve part of your estate for specific beneficiaries, or are unmarried. Unmarried couples do not have the same legal protections as married couples or civil partners under the intestacy rules, so relying on assumptions can create serious problems.
It can also be helpful where a couple wants the survivor to have housing security while preserving an eventual inheritance for children. This is sometimes described as property protection planning. It is not a way to guarantee protection from every future financial risk, and it should never be used to try to deliberately avoid legitimate care fees or creditors. Circumstances, timing and the terms of any trust all matter.
For some married couples or civil partners with straightforward wishes, joint tenancy and wills leaving the rest of the estate to each other may be entirely appropriate. There is no single right answer. The best arrangement depends on who has contributed to the property, who needs security, and who you want to benefit in the long term.
Check how your home is owned before making a will
Do not assume the way you bought your home is still right for your current circumstances. Before making or updating your will, check whether you own the property as joint tenants or tenants in common.
Your title register may contain a restriction indicating that the property is held as tenants in common. The transfer documents from when you bought the property, or a declaration of trust, may also show the position. If you are unsure, a conveyancer or solicitor can help you establish the form of ownership.
Couples can change from joint tenants to tenants in common by severing the joint tenancy. This is a formal process and should be completed correctly. Changing the ownership arrangement is separate from making a will: one does not automatically change the other. Once the joint tenancy has been severed, both owners should review their wills promptly.
If you are already tenants in common, make sure your will identifies what should happen to your share. You do not necessarily need to state the exact percentage in the will if the ownership documents already establish it, but your instructions should be unambiguous about the gift or trust you intend to create.
Decisions to make in a tenants in common will
Start with the practical question: who should receive your share if you die? You may wish to leave it outright to your spouse, partner or adult children. If the person inheriting is young, a trust may be needed until they reach an appropriate age.
Next, consider whether anyone needs to remain in the property. A surviving spouse, partner or dependent child may need stability more than an immediate inheritance. Your will can appoint trustees to manage the arrangement and set conditions, such as what happens if the survivor moves out, remarries, enters long-term care, or chooses to sell.
You should also think about the mortgage and household costs. Inheriting a share of a home does not remove the need to meet mortgage payments, insurance, council tax, repairs and other outgoings. A will cannot force a lender to release someone from a mortgage. Make sure your plans are realistic for the people involved.
Finally, choose reliable executors and trustees. An executor deals with your estate. A trustee manages property or money held in trust. The same person can act in both roles, but a property trust can last for years, so choose people who are organised, trustworthy and able to work fairly with all beneficiaries.
Do not forget the formalities
A carefully worded will is of little use if it has not been signed correctly. In England and Wales, you must sign your will in the presence of two witnesses, and they must then sign in your presence. Your witnesses should be independent adults. A beneficiary, or the husband, wife or civil partner of a beneficiary, should not witness the will because this can cause that person’s gift to fail.
If you and your partner are making wills, mirror wills can be a practical option where your wishes are similar. They remain two separate wills, which is particularly relevant when each of you owns a distinct share as tenants in common. You can set out matching intentions while ensuring each will deals with its owner’s share.
Review your will after major life changes, including marriage, divorce, separation, buying or selling a property, the birth of a child, or the death of an executor or beneficiary. Marriage usually revokes an existing will unless it was made in contemplation of that marriage, so it should never be left unchecked.
A tenants in common arrangement gives you the opportunity to decide where your share of the home goes. Putting those wishes into a valid will now can spare the people you care about from uncertainty, disagreement and decisions made at an already difficult time.