Right of Survivorship Explained

18 December 2019

When a property is owned by two or more people as joint tenants and one owner dies, the ownership of the property will automatically pass to the surviving owner(s). This is called the Right of Survivorship.

How Does the Right of Survivorship Work?

A property can be jointly owned in one of two ways; either as joint tenants or tenants in common. Tenants in common each own a specified share of the property (which can be in uneven proportions). Joint tenants do not own a specified share of the property. Instead, they both own the property together as a whole.

The Right of Survivorship only applies to property owned as joint tenants, and comes into effect when one of the joint owners dies. Under this right, the surviving joint owner(s) of the property will automatically own the whole of the property.

This cannot be altered by the terms of the deceased's Will or the Rules of Intestacy (if there is no Will) because the deceased didn't own an identifiable share in the property. This means that even if the deceased did write a Will stating that their interest in the property should be passed on to someone else, this will be overridden by the Right of Survivorship.

This is not the case for property owned as tenants in common, where the Right of Survivorship doesn't apply. A deceased person's share in a property owned as tenants in common will form part of their Estate. As such, it can be passed on under the terms of the deceased's Will to whoever they choose, or (if they didn't make a Will) it would be dealt with under the Rules of Intestacy.

Is Probate Needed for Property to Pass by the Right of Survivorship?

The term Probate refers to a legal document that is sometimes needed to deal with a person's assets after they die. This document is called a Grant of Probate or a Grant of Letters of Administration (depending on whether there's a Will).

Probate will generally be needed to deal with a property that the deceased owned either in their sole name or jointly as tenants in common. However, it won't be needed to deal with property owned as joint tenants that is being passed under the Right of Survivorship. This is because in these circumstances, the Land Registry is able to update the property title to put this into the sole name of the surviving joint owner without needing to see this document.

Finding Out How a Property Is Owned

So, to determine whether or not the Right of Survivorship will apply to a deceased person's property, you will need to first determine how the property is held. If the property is registered with the Land Registry then it should be quite straight forward to find this information out by simply contacting the Land Registry.

If the property isn't registered with the Land Registry, then you'll need to look at the title deeds to determine how the property is held. The property will then need to be registered with the Land Registry in order for the title to be updated. This is because since 1985 it has been compulsory for all land to be registered, and a sale or transfer of a property will trigger first registration.

It's important to bear in mind that even if Probate isn't needed to deal with a deceased person's home, it may still be needed to deal with other assets they owned. This could include savings, shares or foreign assets, for example. If you are unsure of whether or not Probate is needed on an Estate or if you need some guidance on what steps to take, speak to one of our Probate Advisors for free initial advice.

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