Is Probate Needed for Property Owned as Joint Tenants?
04 September 2019
By Probate Case Manager, Angela Mui
There are two ways a property can be jointly owned by two or more people; either as joint tenants or as tenants in common. Probate is usually not required to deal with property owned jointly as joint tenants, whereas it may be required to deal with property owned as tenants in common.
What's the Difference between Joint Tenants and Tenants in Common?
If a property is held as joint tenants, this means that both owners own the property as a whole, with neither owning an identifiable share. If one of the owners dies, the property will belong automatically to the surviving owner through the laws of survivorship. Joint tenants cannot pass on ownership of their property in their Will – this will always be superseded by the laws of survivorship.
If a property is owned as tenants in common, each individual owner can own different percentage shares of the property. If the property is owned this way, there would usually be a restriction on the property title to reflect this. This will state:
"Restriction: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the Court."
When a property is owned as tenants in common, each individual owner can decide who should inherit their share of the property in their respective Wills. If there is no Will, a deceased owner's share will pass in accordance with the Rules of Intestacy.
Is Probate Required to Transfer the Property?
Probate is normally described as the legal process of applying to the Court for a document called a Grant of Representation. The Grant of Representation shows who has authority to deal with the assets of the person who has died. This is normally the Executor named in their Will or their next-of-kin if they died without a Will.
If a joint tenant dies, the property automatically belongs to the surviving joint tenant. There is no need to show who has authority to deal with the assets of the person who has died, because the laws of survivorship supersede this. There is therefore no need for Probate when dealing with a property held as joint tenants.
The process for recording ownership of the property by the surviving joint tenant is relatively straightforward. If the property is registered at the Land Registry, the deceased's name can be removed from the property title simply by registering the death certificate with the Land Registry. If the property is not registered, the death certificate can be placed with the title deeds and this will normally be sufficient.
If a property is owned as tenants in common, the beneficiaries of the deceased tenant-in-common will inherit their share.
This is sometimes recorded through a transfer of the property into the names of the surviving tenant-in-common and the new beneficiaries. The Conveyancers who are transferring the property may require the Executor or next-of-kin named on the Grant of Representation to be involved in the transfer.
If the property is being sold, the Grant of Representation will show who should receive the deceased's share of the sale proceeds, so they can deal with them in accordance with the terms of the Will or the Rules of Intestacy.