There are two ways in which you can own property jointly in England and Wales: -
1. Beneficial joint tenants
2. Tenants in common.
It is very important to make this distinction as to whether your property is owned as beneficial joint tenants or tenants in common as this will determine whether your Will
deals with your share of these assets, or whether they pass to the surviving joint holder automatically.
What are Beneficial Joint Tenants?
As joint tenants, each party owns the entire property equally and does not have a defined share. Even if one party has paid 75% of the deposit or contributes more towards the mortgage, the position is still that each party owns 100% of the property together.
The main feature of a joint tenancy is the right of survivorship. This means that upon the death of one joint tenant, the property will automatically pass to the surviving joint tenant(s).
Holding property as joint tenants means that no provision can be made in your Will towards your share of the property, as the property will continue to be passed to the surviving joint tenants until there is only one survivor. This person will then become the sole owner of the property and the property will automatically form part of their estate upon their death.
The sole owner will then be free to make provisions in their Will to distribute the property to whoever they wish, and they will also be entitled to sell the property.
For individuals who have made larger contributions towards the property, or someone who may wish to ensure that their share is distributed to someone other than the co-owner, then holding the property as beneficial joint tenants may not be the right option.
What are Tenants in Common?
When holding property as tenants in common, the property is still owned jointly but each person owns a defined share.
For example, a couple may choose to own 50% each but if one person has contributed more towards the purchase price then one party may own 70% and the other own 30%.
A document is usually prepared to set out the percentage in which each party owns the property, known as a Declaration of Trust. If no evidence of a formal agreement is provided, then the shares will be presumed to be equal.
The benefit of owning property as tenants in common is that the right of survivorship does not apply. Therefore, it is possible to make provisions in your Will to leave your share of the property to whoever you may wish.
It is advantageous for couples of subsequent marriages/civil partnerships to hold their property as tenants in common to protect their children from previous relationships. This way they can distribute their share of the property to beneficiaries of their choice.
Common areas of confusion
It is common for individuals to become confused over the difference between beneficial joint tenancy or a tenancy in common as the word ‘tenancy’ suggests a tenancy agreement or lodger or that the property is not owned but it rented.
This is not the case and every co-owned property in England and Wales will either be held as beneficial joint tenants or tenants in common.
Changing the joint ownership
It is possible to change the way in which you own your jointly held property. We would be happy to advise you on the best option depending on your wishes and circumstances. We can also provide clarification regarding the way that your property is currently owned.
Do not hesitate to contact our specialist team on 0113 200 7480 or email us on firstname.lastname@example.org to arrange your free initial, no obligation consultation with a dedicated member of the Private Client team.