The ownership of property – Tenancy Rights
by a Joint Tenancy and the second as Tenants in Common. Below is an
explanation of the two different methods.
Where a property is held by a couple (whether they are married or simply
living together) as Joint Tenants, upon the death of the first the property
will automatically pass to the survivor. The share of the one who dies will
not form part of his or her Estate and will not be affected by the terms
of any Will. In effect both parties own the whole property rather than a
divisible share, which is why on the death of one of the Joint Tenants the
property belongs wholly to the survivor.
TENANTS IN COMMON
The effects of holding a property as Tenants in Common means that each
person has a fixed share of the property e.g. 50/50, 80/20 etc. Under this
form of ownership, the property will not automatically pass on the death
of one to the survivor and the share of the person who dies will form part
of his or her Estate and can bequeathed to a third party. This means that
it is necessary for a Will to be made to dispose of each party’s separate
share of the property. Where there is no Will the deceased person’s share
of the property will pass in accordance with the Intestacy Rules; i.e to their
next of kin.
Where a property is held as Joint Tenants, that Joint Tenancy can be
severed by a simple document called a Notice of Severance. Assuming
that you and your co-owner hold your property as Joint Tenants, you must
now consider whether or not to sever the Joint Tenancy. If you do, then
your share of the Tenancy will no longer automatically pass to your co-
owner upon your death and vice versa. Instead you may each nominate
someone else to receive your share of the property when you die. This
should be done by a Will.
However, you should be aware, that even if you sever the Tenancy and
nominate someone other than your co-owner to receive your share of the
property, a spouse may still have claims against your share under the
Inheritance (Provision for Family Dependants) Act 1975.