Tenants in Common Will UK (2026): What to Put in Your Will When You Own Property as TIC

There are two ways to co-own property in England and Wales — joint tenants and tenants in common — and the difference is critical for will planning: (1) JOINT TENANTS — RIGHT OF SURVIVORSHIP: joint tenants own the property together without separate shares. On first death, the survivor automatically inherits the entire property by the right of survivorship ('jus accrescendi'). This happens REGARDLESS of what the will says — a will cannot override survivorship. Joint tenancy is common for married couples buying together; (2) TENANTS IN COMMON (TIC) — SEPARATE SHARES, NO SURVIVORSHIP: each co-owner has a defined share (e.g. 50/50 or unequal shares such as 30/70). There is NO right of survivorship. On first death, the deceased co-owner's share does NOT pass automatically to the survivor — it passes through the estate, governed by the deceased's will or by the intestacy rules if there is no will; (3) HOW TO CHECK WHICH YOU ARE: look at the Land Registry title register for the property. If the proprietorship register includes the restriction 'No disposition of the registered estate by the proprietor of the registered estate is to be completed by registration without a written consent signed by [name]' (a Form A restriction) = tenants in common. No such restriction = usually joint tenants; (4) WHY THIS MATTERS: if you are joint tenants and you die, your will has NO effect on the property — the co-owner takes all. If you are tenants in common and you die, your share is an estate asset that goes where your will directs; (5) THE PRACTICAL DIFFERENCE FOR MARRIED COUPLES: most married couples initially own as joint tenants — which is fine for simple situations. But if you have children from a previous relationship, are concerned about care home fees, or want to prevent the property passing to a future spouse of the survivor, you should sever the joint tenancy and own as tenants in common, with a carefully drafted will.

As a tenants in common co-owner, your will must clearly deal with your share. Here is what to include: (1) IDENTIFY YOUR SHARE PRECISELY: describe the property clearly ('my share in the property known as [address] and registered at HM Land Registry under title number [XX]') and specify your ownership fraction if it is not 50/50. If the shares have never been formally declared, note that the default presumption is equal shares; (2) NAME WHO RECEIVES YOUR SHARE — OPTIONS: (a) OUTRIGHT TO SURVIVING CO-OWNER: simple and common for couples, but risky (see FAQ on life interest trust). The survivor becomes sole owner outright; (b) OUTRIGHT TO CHILDREN: your half passes to your children on first death. This creates co-ownership between the children and the surviving co-owner — potentially contentious if the children want to sell and the survivor wants to stay; (c) LIFE INTEREST TRUST (RECOMMENDED FOR COUPLES): your share passes into trust. The surviving co-owner has the right to live in the property for their lifetime. On the survivor's death, your share passes to the final beneficiaries (typically children). The survivor does NOT own your share outright; (d) DISCRETIONARY TRUST: trustees decide how and when your share is used or distributed — maximum flexibility but more complex; (3) APPOINT TRUSTEES: for a life interest trust, appoint trustees to hold your share. Two trustees are required to give a valid receipt for capital. Appoint a professional co-trustee if there is a risk of conflict (e.g. the trustees are also the final beneficiaries); (4) CONSIDER THE TRUSTEE POWERS: in the will trust, include powers for trustees to: sell or retain the property; reinvest trust capital; charge the trust for professional services (if a professional trustee is appointed); (5) CONTINGENCY CLAUSES: what happens if the intended beneficiary dies before the trust ends? Include substitutionary gifts; (6) LETTER OF WISHES: alongside the will, write a non-binding letter of wishes explaining to the trustees how you want discretion exercised. This is especially useful for discretionary trusts; (7) GET PROFESSIONAL DRAFTING: life interest trust provisions in a will require careful drafting. The WillSafe UK will kit can help you document your wishes clearly — for complex trust provisions, supplement with specialist legal advice.

Leaving your tenants in common share outright to a surviving spouse in your will is the simplest approach — but it creates risks that a life interest trust (IPDI — Immediate Post-Death Interest under IHTA 1984 s.49A) avoids: (1) SECOND MARRIAGE RISK: if you leave your share to your spouse outright, and they later remarry, their new spouse could inherit the whole property on the survivor's death — disinheriting your children entirely. A life interest trust prevents this: the trust capital (your share) passes to your children on the survivor's death regardless of any subsequent remarriage; (2) CARE HOME FEES: if you leave your share to the survivor outright, they own 100% of the property. If they later need care, the local authority assesses the full value of the property in the means test (subject to any qualifying occupier disregard). A life interest trust means the trust capital (your share) is NOT the survivor's capital — it cannot be assessed in the means test; (3) MIRROR WILL REVOCABILITY: simple mirror wills create independent documents — each spouse can change their will after the other dies. There is nothing legally binding the survivor to the agreed intention. A life interest trust is created in the will itself — once the first spouse dies and the trust is constituted, it cannot be unwound by the survivor; (4) BLENDED FAMILIES: if either partner has children from a previous relationship, the outright gift risks those children losing their inheritance. The trust guarantees the capital passes to the specified beneficiaries; (5) IHT BENEFITS: an IPDI trust qualifies for the spouse exemption on first death (IHTA 1984 s.18 — assets in an IPDI trust are treated as the surviving spouse's assets for IHT; spouse exemption applies on first death). The nil-rate band and RNRB can be preserved for the second death; (6) THE SLIGHT COMPLICATION: a life interest trust means the survivor does not own the property outright. They cannot sell or mortgage their own share (which they retain) and the trust share without trustee agreement. For most couples this is not a problem — the trustees and survivor usually cooperate. For adversarial relationships it requires more care.

If you currently own as joint tenants but want the tenants in common benefits (so your will can control your share), you need to sever the joint tenancy: (1) WHAT IS A NOTICE OF SEVERANCE: a notice of severance is a written document served on the other co-owner(s) declaring that the joint tenancy is severed and the property is now held as tenants in common in equal shares (unless the underlying beneficial interests were unequal, in which case a declaration of trust is also needed). Once served, the severance is effective immediately — it is UNILATERAL (you can do it without the co-owner's consent); (2) HOW TO SEVER: (a) Prepare a Notice of Severance in writing — available from legal stationers or by instructing a solicitor; (b) Serve on all other co-owners — personally or by recorded delivery to their last known address; (c) The co-owner does not need to agree — the act of serving is sufficient to sever; (d) Register the restriction at Land Registry — complete Form JO (application to enter a restriction) or Form SEV (if bilateral — both owners sign). This adds a Form A restriction to the title register so any future buyer/lender knows the tenancy is in common; (3) AFTER SEVERANCE — UPDATE YOUR WILL IMMEDIATELY: once severed, your share no longer passes by survivorship — it passes through your estate. If you die intestate (no will), the intestacy rules apply, which may not give your share to the right person. Update your will on the same day as severance or before; (4) WHAT SHARES DO YOU EACH HAVE: on severance by notice, the presumption is equal shares — even if one person paid more of the purchase price. If shares should be unequal, a Declaration of Trust (Deed of Trust) must be prepared and signed by both parties, stating the respective beneficial ownership percentages; (5) MARRIED COUPLES AND CARE HOME FEES: if one spouse may need care, severing the joint tenancy to TIC and creating a life interest trust will (on first death) is the most commonly used mechanism to protect the property from the means test. This should be done sooner rather than later — before any care need becomes reasonably foreseeable.

Death of a tenants in common co-owner has specific implications for the mortgage and the ongoing ownership of the property: (1) MORTGAGE IS JOINT AND SEVERAL: most co-ownership mortgages are joint and several — meaning each borrower is liable for the FULL debt, not just their share. On first death, the survivor inherits the liability for the entire mortgage — the lender can pursue the survivor for 100% of the outstanding debt; (2) LIFE INSURANCE: it is important to have life insurance (or a decreasing term mortgage protection policy) that covers the mortgage balance on first death. Without this, the survivor may struggle to service the full mortgage alone; (3) THE TRUST SHARE AND THE MORTGAGE: if your will creates a life interest trust over your TIC share, the trust holds your share subject to the mortgage charge. On first death, the trustees hold the share for the life tenant (the survivor), but the mortgage debt secured on the property remains. The practical position is that the mortgage must be serviced from the property's rental income (if rented) or the survivor must refinance to assume sole borrower liability; (4) LENDER CONSENT FOR TRUST ARRANGEMENTS: inform your mortgage lender if you are setting up a trust over your TIC share. Most standard residential mortgage conditions require the borrower to notify the lender of material changes to ownership structures. The lender may need to be a party to any restriction on disposition; (5) REMORTGAGE ON FIRST DEATH: if the survivor needs to remortgage in their own name after first death, they will need: the grant of probate; the assent (confirming they now hold their own TIC share outright); agreement from the trustees to charge the trust share if the lender requires; their own affordability assessment; (6) SDLT ON INHERITED TIC SHARE: no SDLT arises when the deceased's TIC share passes to a beneficiary through the estate. If the surviving co-owner purchases the trust share from the trustees at some future point (rather than receiving it by trust distribution), SDLT applies on that transaction; (7) PRACTICAL RECOMMENDATION: review your mortgage terms, life insurance cover, and will provisions together — they interact significantly for TIC co-owners.