Q&A - Can we change from Joint Ownership of our property to Tenants in Common?

Q:  My husband and I chose to own our home jointly (as Joint Tenants) so that when one of us dies our half automatically goes to the other. However, when we chose to do that we did not have children. Now we do have children we would like to leave our half of the home to them rather than to each other. Is there any way we can change the way we own the property?

A:  If you own a property as Joint Tenants, when one of the owners dies the surviving co-owner automatically becomes the sole owner of the property, as you rightly say. This “survivorship” law overrides Wills and the Laws of Intestacy so you cannot leave the property to anyone else in a Will.

A further downside is that if one of you needs to go into a care home at some stage in the future, the local authority can regard the property as a capital asset and place a charge against it in lieu of your care costs. In cases where care costs are considerable the local authority could potentially end up claiming the entire sale proceeds when the house is sold, leaving your children with nothing from the sale.

If on the other hand you and your husband owned your property as Tenants in Common, the survivorship law does not apply and you would each be able to leave your half of the property to your children in your Will; or indeed to anyone else for that matter. You can change the way you own your home by completing a Deed of Severance at the Land Registry, or if your property is unregistered the Deed can be kept with your house Deeds. Your solicitor would be able to do this for you and could then draft new Wills for you that would exactly reflect your wishes. 

Article 07/01/2019

Michael Keeling

Michael Keeling

Partner

Partner and Head of our Property and Probate, Wills, Tax and Trusts team in Chirk and Llangollen