Probate Guide
Jointly Owned Property and Probate
Whether jointly owned property needs to go through probate depends entirely on how it is held — as joint tenants or as tenants in common. The two routes are fundamentally different.
Joint tenancy passes automatically to the survivor by the right of survivorship — no probate required for the property. Tenants in common must go through probate before the deceased's share can be transferred or sold.
The Key Rule at a Glance
Joint Tenancy
No probate needed
Right of survivorship applies — property passes automatically to the survivor
Tenants in Common
Probate required
Deceased's share must pass through probate under the will or intestacy rules
Joint Tenancy: The Right of Survivorship
When property is held as joint tenants, both owners hold the property together as a single, indivisible unit. Neither owner has a distinct share that they can leave in a will.
The defining feature of joint tenancy is the right of survivorship: when one joint tenant dies, their interest in the property passes automatically to the surviving joint tenant(s). This happens by operation of law — it does not matter what the deceased's will says. The will simply cannot override the right of survivorship.
Because the property passes outside of the estate, no Grant of Probate is needed for the property itself. The surviving owner simply applies to HM Land Registry using Form DJP (Deceased Joint Proprietor) with a certified copy of the death certificate. The property is then registered in the survivor's sole name.
Important: Probate may still be needed for other assets
Even if the property passes by survivorship without probate, the deceased may have other assets — bank accounts, investments, personal belongings — that do require a Grant of Probate. The property simply falls outside the probate process; the rest of the estate does not.
Tenants in Common: Probate is Required
When property is held as tenants in common, each owner holds a defined share — which may be equal (50/50) or unequal (e.g. 60/40 or 70/30). Each owner can deal with their share independently: they can sell it, mortgage it, or leave it in their will.
When a tenant in common dies, their share forms part of their estate. It does not pass automatically to the surviving co-owner. Instead, it passes in accordance with the deceased's will — or, if there is no will, under the intestacy rules.
Before the deceased's share can be transferred to a beneficiary or the property can be sold, the executor must obtain a Grant of Probate. This is the legal authority to deal with the estate. Without it, HM Land Registry will not register any change of ownership.
Tenants in common without a will: a significant risk
If a tenant in common dies without a will, their share passes under the intestacy rules — which may produce outcomes no one intended. An unmarried partner receives nothing. Children from a previous relationship may be overlooked. A will is essential for anyone who owns property as tenants in common.
Read our full guide: Tenants in Common vs Joint TenantsJoint Tenancy vs Tenants in Common: Side by Side
The table below compares the two forms of joint ownership across the issues that matter most for probate and estate planning.
| Issue | Joint Tenancy | Tenants in Common |
|---|---|---|
| How ownership is held | Both owners hold the property as a single, indivisible unit. Neither has a distinct share. | Each owner holds a defined share — equal or unequal (e.g. 50/50, 60/40, 70/30). |
| What happens on death | The deceased's interest passes automatically to the surviving owner(s) by the right of survivorship. No probate is needed for the property itself. | The deceased's share forms part of their estate and must pass through probate — either under the will or the intestacy rules. |
| Does probate apply? | No — the property passes outside of probate. The survivor registers the death at HM Land Registry using Form DJP. | Yes — the deceased's share must go through probate before it can be transferred or sold. |
| Can the share be left in a will? | No — the will cannot override the right of survivorship. The property passes to the survivor regardless of what the will says. | Yes — the deceased can leave their share to anyone in their will. If there is no will, the intestacy rules apply. |
| Inheritance tax | The full property passes to the surviving spouse (IHT-exempt between spouses), but the nil-rate band is not used on the first death. | The deceased's share can be left to a trust on the first death, potentially using the nil-rate band and reducing the overall IHT liability. |
| Care fee planning | The survivor owns the whole property. If they later need residential care, the full value may be assessed. | The deceased's share can be held in a trust, potentially protecting it from the surviving partner's care fee assessment. |
For a more detailed comparison, see our full guide: Tenants in Common vs Joint Tenants
How It Works in Practice
These scenarios illustrate how the type of joint ownership affects what happens to the property — and whether probate is needed.
Married couple — joint tenants
David and Sarah own their home as joint tenants. David dies. Sarah automatically inherits David's interest by survivorship. No probate is needed for the property. Sarah applies to HM Land Registry with Form DJP and a certified copy of the death certificate. The property is registered in Sarah's sole name.
Note: Probate may still be needed for other assets in David's estate — bank accounts, investments, etc.
Unmarried couple — joint tenants
James and Emma are not married but own their home as joint tenants. James dies without a will. Emma automatically inherits James's interest by survivorship — the intestacy rules do not affect the property. However, James's other assets (savings, car, personal belongings) pass under the intestacy rules, and Emma — as an unmarried partner — receives nothing from those assets.
Note: Survivorship protects the property, but unmarried partners have no automatic rights to other estate assets without a will.
Couple — tenants in common with wills
Michael and Claire own their home as tenants in common (50/50). Both have wills leaving their share to a life interest trust for the survivor, with the remainder to their children. When Michael dies, his 50% share passes into the trust via probate. Claire can continue to live in the property. On Claire's death, the full property passes to the children.
Note: This structure protects both the survivor's right to remain in the home and the children's ultimate inheritance.
Tenants in common — no will
Robert and his sister jointly own an investment property as tenants in common (50/50). Robert dies without a will. His 50% share passes under the intestacy rules — to his wife, not to his sister. Robert's wife now co-owns the investment property with Robert's sister. Neither may want this outcome.
Note: Tenants in common without a will creates significant risk. The intestacy rules may produce outcomes no one intended.
Blended family — tenants in common
Peter has children from a previous marriage. He and his new partner Linda own their home as tenants in common. Peter's will leaves his 50% share to a life interest trust — Linda can live in the property for life, but on her death Peter's share passes to his children. Without this structure, Linda could inherit everything and Peter's children could be left with nothing.
Note: Tenants in common with a trust will is the standard solution for blended families.
Severing a Joint Tenancy
A joint tenancy can be converted to a tenancy in common at any time — a process known as severance. Severance can be carried out by one owner without the consent of the other, simply by serving a notice of severance.
Once severed, each owner holds an equal share as tenants in common (unless a different split is agreed). The change should be registered at HM Land Registry by entering a restriction on the title register.
Severance is commonly recommended in the following circumstances:
Blended families
To ensure the deceased's share can be left to children from a previous relationship, rather than passing automatically to the surviving partner.
Inheritance tax planning
To allow the deceased's share to be left to a trust on the first death, potentially using the nil-rate band and reducing the overall IHT liability.
Care fee planning
To protect the deceased's share from being assessed as part of the surviving partner's assets if they later need residential care.
Separation
When a couple separates, severing the joint tenancy ensures that neither party's share passes automatically to the other if they die before the divorce is finalised.
Related: If you are separating from a partner, severing the joint tenancy is one of the most urgent steps to take. See our guide: Separated But Not Divorced. For the full picture on property transfer after death, see: Property Transfer on Death.
The Probate Process for Tenants in Common Property
When a tenant in common dies, the executor must follow these steps before the property can be transferred or sold.
Obtain a professional valuation
The executor must obtain a professional market valuation of the property as at the date of death. This is typically carried out by a RICS-qualified surveyor or estate agent. The value is declared to HMRC on the probate inheritance tax forms.
Apply for a Grant of Probate
The executor applies to the Probate Registry for a Grant of Probate (or Letters of Administration if there is no will). This gives the executor legal authority to deal with the estate, including the deceased's share of the property.
Deal with inheritance tax
If the estate (including the deceased's share of the property) exceeds the nil-rate band, inheritance tax must be paid to HMRC before the Grant of Probate is issued. In some cases, IHT on property can be paid in instalments.
Transfer or sell the share
Once probate is granted, the executor can either transfer the deceased's share to the beneficiary (using Form AS1 and Form AP1 at HM Land Registry) or arrange a sale of the whole property with the agreement of the surviving co-owner.
Register the change at HM Land Registry
All changes to the ownership of the property must be registered at HM Land Registry. The executor submits the relevant forms with the Grant of Probate and the applicable fee.
Related Guides
Further Reading
A full comparison of the two forms of joint ownership — ownership shares, wills, IHT, and care fees.
Read guideHow property passes after death in England and Wales — Land Registry forms, HMRC valuations, and blended family planning.
Read guideWhy separating couples must sever their joint tenancy urgently — and what happens if they do not.
Read guideA step-by-step guide to applying for a Grant of Probate in England and Wales.
Read guideNot all estates require probate. Find out when a Grant of Probate is — and is not — required.
Read guideHow to use tenants in common and trust wills to reduce the inheritance tax liability on your estate.
Read guideFrequently Asked Questions
Does jointly owned property go through probate?
It depends on how the property is owned. If it is held as joint tenants, the right of survivorship applies — the property passes automatically to the surviving owner without going through probate. If it is held as tenants in common, the deceased's share forms part of their estate and must pass through probate before it can be transferred or sold.
What is the right of survivorship?
The right of survivorship is the legal rule that applies to joint tenancies. When one joint tenant dies, their interest in the property automatically passes to the surviving joint tenant(s) — regardless of what the will says. The deceased's interest does not form part of their estate for probate purposes.
How do I register a death for a jointly owned property?
If the property is held as joint tenants, the surviving owner applies to HM Land Registry using Form DJP (Deceased Joint Proprietor), accompanied by a certified copy of the death certificate. There is no need for a Grant of Probate. The property is then registered in the survivor's sole name.
Can a will override joint tenancy?
No. A will cannot override the right of survivorship that applies to joint tenancies. Even if the deceased's will purports to leave their share of the property to someone else, the right of survivorship takes precedence and the property passes to the surviving joint tenant. To change this, the joint tenancy must be severed during the deceased's lifetime.
What happens to tenants in common property when one owner dies?
When a tenant in common dies, their share of the property passes in accordance with their will (or the intestacy rules if there is no will). The share forms part of the deceased's estate and must go through probate. The executor obtains a Grant of Probate and then either transfers the share to the beneficiary or arranges a sale.
Can tenants in common force a sale of the property?
Yes. If the surviving co-owner and the deceased's estate (or the beneficiary who inherits the share) cannot agree on what to do with the property, either party can apply to the court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale. This can be a costly and time-consuming process.
What is the difference between joint tenancy and tenants in common for probate purposes?
The key difference is whether the property passes through probate. Joint tenancy: the property passes automatically to the survivor by the right of survivorship — no probate needed for the property. Tenants in common: the deceased's share must pass through probate before it can be transferred or sold.
How do I find out if a property is held as joint tenants or tenants in common?
You can check the title register at HM Land Registry. If the property is held as tenants in common, there will be a restriction on the title register stating that the property cannot be sold without the consent of both owners (or a trustee). If there is no such restriction, the property is likely held as joint tenants. You can obtain a copy of the title register from the Land Registry for a small fee.
Can I sever a joint tenancy?
Yes. A joint tenancy can be severed at any time by one owner serving a notice of severance on the other owner(s). Once severed, the property is held as tenants in common in equal shares (unless a different split is agreed). The change should be registered at HM Land Registry. Severance is often recommended as part of estate planning — particularly for blended families or where care fee planning is a concern.
Does jointly owned property affect inheritance tax?
Yes. For joint tenants, the full property passes to the surviving spouse (IHT-exempt between spouses), but the nil-rate band is not used on the first death. For tenants in common, the deceased's share can be left to a discretionary or life interest trust on the first death, potentially using the nil-rate band and reducing the overall IHT liability on the second death. Specialist advice is recommended.
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