Is Probate Needed for Tenants in Common?

28 November 2019

If a property is jointly owned as tenants in common, and one of the owners dies, Probate is likely to be needed to deal with their share of the property. This is because it will need to be distributed either in line with the terms of their Will (if they left one) or the Rules of Intestacy (if they didn't).

Owning a Property as Tenants in Common

If two or more people own a property jointly, this can either be as joint tenants or tenants in common.

A property owned as joint tenants will be owned as a whole by all of the owners, with no one having an identifiable share. On the death of one owner, the property will transfer into the name(s) of the surviving owner(s) under the Right of Survivorship rules.

This is not the case when a property is owned as tenants in common. When a property is owned this way, each owner holds a specified percentage of the property. This is commonly a 50/50 split, but it can be divided in any proportion, as decided by the joint owners. A 'Declaration of Trust' deed will often be used in unequal shares, showing the amount each party owns. These proportions will usually be based on how much each person contributed to the purchase and/or ongoing costs of the property.

Why is Probate Needed for Property Owned as Tenants in Common?

If a property is jointly owned as tenants in common and one of the owners dies, Probate is likely to be needed to deal with the deceased's share of the property. This is because their share will form part of their Estate, and will be dealt with in the same way as their other assets.

What this means in practice is that their share of the property will be passed on to those entitled to inherit it. If they left a Will, then this will name their chosen Beneficiaries. If they didn't leave a Will, then inheritance laws called the Rules of Intestacy will determine who is entitled to inherit what from their Estate.

Whether or not the deceased left a Will, won't have any bearing on whether Probate is needed. It is the contents and the value of the deceased person's Estate that determine the need for Probate. A share in a property is a significant asset, and therefore Probate is likely to be needed in order to sell or transfer property during the administration of the Estate.

What Exactly Is Probate?

The term 'Probate' refers to a legal document that grants a named person the legal authority to wind up a deceased person's affairs. This document is called a Grant of Probate if there's a Will or a Grant of Letters of Administration if there isn't. The umbrella term for this document is a Grant of Representation (which can refer to either version).

Probate isn't always needed to administer an Estate, because some assets and small amounts of money can be dealt with without it.

Any significant assets, such as a share in a property or large amounts of money (over £5,000) are likely to require Probate. This confirms that the person who is selling or transferring the asset has the appropriate legal authority to do so.

Is Probate Always Needed for Jointly Owned Property?

If a property is owned jointly as joint tenants, as opposed to tenants in common, then Probate will not be needed to deal with this asset. This is because a property owned as joint tenants will automatically pass into the ownership of the surviving joint owner(s) when one owner dies.

This happens because the surviving joint owners have the Right of Survivorship. Probate isn't needed to transfer a property under the Right of Survivorship (although it could still be needed for other assets owned by the deceased). The Right of Survivorship doesn't apply, however, to tenants in common, which is why Probate is often needed in this situation.

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