What Property is yours to give by Will? 

The rules governing property ownership are important because you cannot leave property that you do not own by Will.  If you own any property in shared ownership – such as joint ownership or ownership ‘in common’ – this will affect your right to give away this property.

Joint Ownership (Joint Tenants)

This is where property is held by more than one person and on the death of one joint owner, his interest automatically passes by survivorship to the surviving joint owner(s). A property held this way therefore cannot pass under a Will because its ownership is already predetermined.  Examples of property that may be held this way are: the family home and joint bank accounts.

Joint Ownership ‘In Common’ (Tenants in Common)

Where property is held by more than one person as joint ownership ‘in common’, the share of the property owned by each co-owner ‘in common’ can pass by their Will. This is because they are said to have a distinct and recognisable share of that property in their own right.  On the death of one of the owners ‘in common’, their share of the property would pass either by Will to that person’s beneficiaries or if there was no Will, it would pass (as part of the estate of the deceased) under the ‘intestacy rules’ to that person’s next of kin.  

Granting a Life Interest

The other owner ‘in common’ could therefore be in a situation where they had to sell the property to settle the gift entitlement to others.  What normally happens in these circumstances is that the owners ‘in common’ make Wills and grant each other a ‘life interest’ in the property, enabling them to remain living in the house as long as they wish or for the remainder of their lifetime.  Only on the death then, of the surviving owner ‘in common’ would the beneficiaries of the first deceased owner ‘in common’ be entitled to take their gift of one share of the proceeds of the sale of the house.

Severance of a Joint Tenancy

Sometimes co-owners (Joint Tenants) may wish to leave a share of their jointly held property to someone other than their co-owner.  They would need to sever their equitable joint tenancy to do this and convert their ownership status in equity to joint owners ‘in common’ instead.  One party would need to notify the other as to their intention to do this, in writing. A Notice of Severance of Joint Tenancy can be used.  Where the property is subject to a mortgage or other loan, the Lender needs to be notified and the severance registered on the property deeds through the local Land Registry.

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