When a joint tenant dies, his or her share of the property is automatically transferred to the surviving tenant. In these cases, known as Right of Survivorship, there is no need to apply for a Grant of Probate. However, if one owns a share of a property as a tenant in common, their share does not automatically pass to the remaining co-owners if one of the owners dies. What happens to that share is largely determined by whether or not they left a will. In either case, a Grant of Probate for tenants in common is required to administer the deceased’s estate, including their share of the co-owned property.

What is meant by tenants in common?

Each individual person owns a share of the property under a tenants in common agreement, but it does not have to be equal shares. How much of a share each person owns could be determined by who put the most money into the property, or if buying with family, a parent could own 50% of the property while their two children each own 25%.

A tenants in common agreement is commonly used when friends buy a property together or when families help their children get on the property ladder. It differs from a joint tenancy in that each owner can sell their share of the property or leave it to anyone in their will. It is also possible for one owner to mortgage their share of the property, but this is uncommon, owing to the fact that most mortgage lenders would refuse to lend on this basis.

Certain clauses in the agreement, however, can state that no owner is allowed to sell without giving the other owners first refusal, or that they have the option to’vet’ any potential new owners. If this clause is not included in the agreement and an owner decides to sell their share, the remaining co-owners have the right to file a petition action with the court, asking the court to sell the property via a court order and distributing the proceeds equally among all the owners.

The agreement should specify who is responsible for paying the mortgage and other bills, though in most cases, a joint account is established and each owner deposits their share of the outgoings into it. However, as tenants in common, each owner has the following legal rights:

Without a court order, the tenant in common owner cannot be forced to leave the property.
None of the other tenants in common owners can sell the entire property unless all of the owners agree or a court order is issued.
Additional loans against the property are not permitted unless all tenants in common agree.

It is possible, however, to add owners later and include their names on the property’s title deeds.

Grant of Probate for tenants in common

So let’s take a closer look at this. To begin, lets consider some situations in which a property is owned by tenants in common.

Parents and their children – often, parents help their children get on the property ladder by investing in a property with them and will own the property together with a tenants in common agreement.
Business partners – a tenants in common arrangement works well if either business partner wishes to pass on their share in the property to a family member, such as their spouse and/or children.
Co-habitees – couples living together may want to protect their share of the property should the relationship not continue or if they want to leave their share of the property to someone other than their co-habitee on their death.
Married couples with children from a previous relationship – to ensure children from a previous relationship don’t miss out on any inheritance, a tenants in common agreement is put in place so that each co-owner can leave their share of the property to their own children. However, in this situation, it is a good idea to ensure the new spouse has the right to live in the property until their death, i.e. a life interest.

When a property is owned by tenants in common, there are two options when a co-owner dies: they either left their share to another party in their will, or they did not leave a will and thus the Rules of Intestacy apply to inheritance. One thing to keep in mind is that with tenants in common, a co-share owner’s of the property does not automatically pass to the other co-owners because there is no Right of Survivorship.

If the deceased made a will, it is very likely that they specified who would inherit their share of the property. In some cases, they may have designated another co-owner as a beneficiary, or they may have designated all other co-owners to receive an equal share. They could also have left their share to a family member or another beneficiary.

If they did not leave a will, the Rules of Intestacy apply, and their share of the estate is distributed to the deceased’s nearest living relatives. If there are no living relatives to receive the inheritance, the Crown will receive it.

Whether or not there is a will, the executors or a close family member will be required to apply for a Grant of Probate. This is because the value of their share of the property is very likely to exceed the £10,000 limit for which probate is not required.

Declaration of Trust

It is recommended that many tenants in common situations obtain a Declaration of Trust, which details what share of the property each owner has. This document should also include a breakdown of who is responsible for what in terms of outgoings, such as bills, mortgage, and maintenance. It can also be used if a co-owner wants to sell their share of the property, whether with or without the consent of the other owners, or if one of the co-owners wants to sublet their share. It is a good way to ensure that parents get their money back when they contribute to the purchase of a property for their children, such as paying the deposit.