When property is owned by more than one person in the UK, it is commonly held either as joint tenants or tenants in common.
Understanding the legal implications of each is crucial, particularly in the unfortunate event of one owner passing away.
In this blog, we explore what happens when one of them dies in the UK, including the probate process, implications for the deceased estate, and what surviving co-owners should expect.
Tenants in Common Meaning
Tenants in common refers to a form of property ownership where two or more people own separate shares of a property.
These shares do not have to be equal, one person may own 60% while another owns 40%, for instance.
Each owner can leave their share to anyone in their will.
This differs from joint tenancy, where all owners have equal rights and the property automatically passes to the surviving owners when one dies (the “right of survivorship”).
Key Characteristics
Each owner holds a distinct share
No automatic right of survivorship
Shares can be passed on through a will
Often used by business partners or unmarried couples
Understanding these principles is vital when considering what happens next upon the death of a tenant in common.
What Happens When One of the Tenants in Common Dies in the UK?
Step 1: Locating the Will and Initiating Probate
When one of the tenants in common dies, their share of the property becomes part of their deceased estate.
The first step is to determine whether the deceased had a valid will.
If there is a will, it will specify who inherits their share of the property.
If there is no will, the estate is distributed according to the rules of intestacy.
To handle the deceased’s estate, the next of kin or executor must apply for probate.
The legal procedure for managing a deceased person’s estate, including their portion of the property, is called probate.
For a detailed guide, see our article on how to contest a will in the UK.
Step 2: Valuing the Deceased’s Share
Before distributing the estate, it is necessary to value the deceased’s share in the property.
This includes considering any mortgage or debts associated with the property, as well as market value.
HMRC may require this information for Inheritance Tax purposes.
Step 3: Transferring Ownership
Once probate is granted, the share of the deceased can be transferred to the beneficiary specified in the will.
If there is no will, the legal process may be longer and more complex.
The property title at the Land Registry will also need to be updated to reflect the new ownership structure.
Tenants in Common Probate
Is Probate Required for Tenants in Common?
Yes, probate is required when one of the tenants in common dies.
In contrast to joint tenancy, the remaining owners do not immediately inherit the deceased’s portion.
The share forms part of their estate and must go through probate.
Who Can Inherit the Share?
Depending on the will (or intestacy rules), the share could pass to:
A family member
A spouse or partner
A trust
Another co-owner
If you’re managing such a situation, the contentious probate can support you in handling any legal disputes that may arise.
Tenants in Common and the Deceased Estate
Selling the Property
The new owner of the deceased’s share may choose to sell it.
This can lead to complications if the remaining tenant(s) do not wish to sell.
The surviving co-owners may be given the opportunity to buy out the share, or in some cases, the entire property may need to be sold.
Renting or Occupying the Property
If the property is rented or occupied, the rights of the new shareowner must be recognised.
This can include their right to:
Receive rental income from their share
Live in the property, depending on legal agreements
Influence property decisions
What to Do If You’re a Surviving Tenant in Common
As a co-owner who is still alive, you must act:
Check the property title: Confirm the type of ownership via HM Land Registry
Speak to the executor: Understand how probate will affect the property
Consider legal advice: Especially if disputes or confusion arise
Common Questions
Can You Avoid Probate With Tenants in Common?
No. Since the deceased’s share doesn’t transfer automatically, probate is necessary.
Can the Surviving Owner Live in the Property?
Yes, but they will now co-own it with the new beneficiary unless they buy out the share.
Can a Share Be Sold Without the Other Owner’s Consent?
Yes, the beneficiary of the deceased’s share can sell it. But the procedure can be complicated, and the court might need to get involved..
Summary
The death of the tenants in common in the UK brings significant legal steps, including probate, valuation, and potential disputes.
It’s essential to understand your rights and responsibilities, whether you’re a surviving owner, beneficiary, or executor.
Need Expert Help?
At Probate Central, we specialise in probate, estate disputes, and legal guidance during emotionally challenging times.
We’re here to help you through every step of the process. Contact us to send your queries.