Tenants in Common: What Happens on Death UK (2026)
Updated 13 May 2026 · 8 min read · England & Wales
When a property is held as tenants in common, there is no automatic right of survivorship. The deceased co-owner’s share does not pass to the surviving co-owner — it passes under their will, or, if there is no will, under the intestacy rules. This has major consequences for property ownership, probate, and estate planning that every co-owner in England and Wales needs to understand.
Joint tenants vs tenants in common: the key difference on death
| Feature | Joint tenants | Tenants in common |
|---|---|---|
| On death, share passes to… | Surviving co-owner automatically (right of survivorship) | Will beneficiary or intestacy |
| Does a will control it? | No — bypasses the will entirely | Yes — the will governs the share |
| Included in the estate? | No (passes outside estate) | Yes (forms part of the estate) |
| IHT exposure? | Spouse exemption applies if survivor is spouse | Included in estate value for IHT |
| Probate needed to deal with property? | No (Land Registry form DJP, death certificate) | Yes (Grant of Probate required for transfer) |
What happens step by step when a tenant in common dies
- The deceased’s share passes to the estate. Their defined share (e.g. 50%) becomes part of their estate, to be distributed under their will or the intestacy rules.
- Executor or administrator takes control of the share. The executor (or, if there is no will, the administrator under letters of administration) has legal authority to deal with the deceased’s interest in the property on behalf of the estate.
- Probate is required before the Land Registry can register any transfer. The Land Registry will not register a transfer of the deceased’s share without sight of the Grant of Probate or letters of administration.
- The share is transferred to the inheriting beneficiary. Once probate is granted, the executor transfers the deceased’s share to the person entitled under the will (or intestacy). This is registered at the Land Registry (usually form AP1 with a certified copy of the Grant and form AS1 for an assent).
- The new co-owners decide the future of the property. The surviving co-owner and the new inheriting co-owner must agree on what happens: continue as co-owners, buy out the inherited share, or sell the property and divide the proceeds.
Who gets the deceased’s share?
If there is a will
The deceased’s share passes to whoever is named in the will. This is often:
- The surviving co-owner (most common for couples) — they end up owning 100%
- Children — who become co-owners alongside the surviving partner
- A trust — for example, a nil rate band discretionary trust or a life interest trust
If there is no will (intestacy)
The Administration of Estates Act 1925 intestacy rules apply. The outcome depends on who survives:
| Survivors | Who inherits the deceased’s share |
|---|---|
| Spouse/civil partner + children | Spouse gets first £322,000 + half remainder; children get other half |
| Spouse/civil partner only | Spouse inherits everything |
| Children only (no spouse) | Children equally |
| Unmarried partner + children | Children equally — partner gets nothing |
| No spouse, no children | Parents, then siblings, then more distant relatives |
The unmarried partner scenario is particularly dangerous: if a cohabiting couple hold the property as tenants in common and one dies without a will, the deceased’s share passes to their children (or other relatives) — not to their partner. The surviving partner could end up co-owning their home with their partner’s family.
Can the surviving co-owner be forced to sell?
If the person who inherits the deceased’s share wants to sell and the surviving co-owner refuses, either party can apply to court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale. The court weighs:
- The purpose of the trust (was it a family home?)
- The welfare of minors living in the property
- The interests of secured creditors
- The circumstances of all beneficiaries
Courts will often delay a sale where minor children live in the property, but will usually order a sale eventually. This is a significant risk where the deceased’s share is inherited by people who have no personal connection to the home.
How to avoid problems: plan ahead
- Make a will that specifically directs your share to the right person — your partner, children, or a trust — rather than leaving it to the intestacy rules.
- Consider converting to joint tenancy if you want automatic survivorship (suitable for married couples with straightforward estates). A simple deed of severance converts tenants in common back to joint tenants.
- Check your title — confirm whether you currently hold as joint tenants or tenants in common via the Land Registry.
- Use a life interest trust or discretionary trust if you want to protect your surviving partner’s occupation while preserving the share for your children — this is particularly common in second marriages or blended families.
Frequently asked questions
Does a tenant in common's share automatically pass to the other owner when they die?
No. This is the fundamental difference between tenants in common and joint tenants. Joint tenants benefit from the right of survivorship — the deceased's interest automatically passes to the survivor, completely outside the will or intestacy rules. Tenants in common hold separate, defined shares. When a tenant in common dies, their share forms part of their estate and passes according to their will (or, if there is no will, the intestacy rules). The surviving co-owner does not automatically inherit the deceased's share.
How do I find out whether I hold property as joint tenants or tenants in common?
Search the Land Registry title register for the property (GOV.UK service — £3 fee per title). If a restriction appears on the proprietorship register reading 'No disposition by a sole proprietor of the registered estate... except under an order of the registrar or of the court', you are tenants in common. If there is no such restriction, you are likely joint tenants. The original conveyancing documents (transfer deed or TR1 form) will also state the co-ownership arrangement. If in doubt, contact your conveyancer.
What happens to the property when a tenant in common dies?
The deceased's share passes: (1) under their will, to whoever they left it to; or (2) under the intestacy rules (Administration of Estates Act 1925) if there is no will — to their spouse/civil partner first, then children, then other relatives. The surviving co-owner retains their own share. Until the estate is administered, the property is held on trust by the executor(s) alongside the surviving co-owner. The surviving co-owner cannot sell or mortgage the property without the cooperation of the executor or beneficiary who inherits the deceased's share.
Can the surviving tenant in common be forced to sell?
Potentially, yes. If the person who inherits the deceased's share wants to realise their interest and the surviving co-owner refuses to sell, the beneficiary can apply to court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) for an order for sale. Courts have wide discretion to order or delay a sale, taking into account the purpose of the trust, the welfare of any children, and the circumstances of all parties. This situation most commonly arises in family disputes or where an estranged relative inherits a share.
Does the deceased's share go through probate?
The deceased's share of a tenants in common property forms part of the estate and is included in the estate's value for probate and IHT purposes. Whether the estate as a whole requires a Grant of Probate depends on the total estate value and the asset types involved. The property itself cannot be transferred or sold until a Grant of Probate (or letters of administration) is obtained, because the Land Registry will not register a transfer from a deceased's estate without sight of the Grant.
Can the deceased's share of the property be left to the surviving co-owner in their will?
Yes — and this is the most common arrangement for married or partnered couples who hold as tenants in common. The deceased's will simply leaves their share of the property to the surviving co-owner. After probate, the surviving co-owner applies to the Land Registry (form AS1 or AP1) to register the transfer of the deceased's share into their sole name, producing a restriction-free title. This is also how a discretionary trust or life interest trust in a will can hold a share of a property for the survivor's benefit.
What happens if a tenant in common dies without a will and is unmarried?
If there is no will, the intestacy rules apply. For an unmarried co-owner with children, the children inherit the deceased's share in equal parts. For an unmarried co-owner without children, the share goes to parents, then siblings. The surviving co-owner — a cohabiting partner — receives nothing from the deceased's share unless they make an Inheritance Act 1975 claim. This is one of the most financially devastating consequences of dying without a will as an unmarried property owner.
Control what happens to your share
Without a will, your share of a jointly-owned property could pass to relatives rather than your partner. WillSafe’s DIY will kit lets you specify exactly who inherits — quickly and affordably.
Get the will kit →Related guides
- Joint tenants vs tenants in common — full comparison
- Putting your house in trust — how it works
- Life interest trusts in wills
- Nil rate band discretionary trusts
- Intestacy and cohabiting partners — the risk
- Assets that don’t need probate