When two or more people buy property jointly, they can take steps so that the share of the first one of them to die passes automatically to the other, irrespective of their wills. Well, at least they can do so in Scotland and in England and Wales, but not in Spain.
In this short article, I look at the different types of joint property ownership and how jointly-owned property is passed on death in England and Wales, Scotland, and Spain.
Bear in mind that
- ‘English’ refers to concepts, language, texts, etc. from England and Wales only, as opposed to other jurisdictions where they may exist or apply.
- ‘Spanish’ refers to concepts, language, texts, etc. from Spain’s derecho común (subject to the Civil Code) only, and does not include the local laws of specific regions.
Passing jointly-owned property on death in England and Wales
In England and Wales, there are two ways in which property can be jointly owned: as joint tenants and as tenants in common.
As joint tenants (sometimes called ‘beneficial joint tenants’), each co-owner owns the whole property and has equal rights to the whole property.
As tenants in common, each co-owner may own equal (50:50) or different shares of the property.
It is possible for joint tenants to change a joint tenancy into a tenancy in common in their lifetime. This is called ‘severing the joint tenancy’ and is a straightforward process which does not require both co-owners’ agreement. One co-owner may notify the other in writing about their intention to sever the joint tenancy. If the property is registered with the Land Registry, they can download and fill in a form called SEV. A joint tenancy cannot be severed by a statement in a will.
How does property owned as joint tenants pass on death?
On the death of a co-owner, the property automatically goes to the other co-owner by right of survivorship. This means that joint tenants have an automatic right to the property on the other co-owner’s death and the passing of the property is unaffected by their will if they leave one.
How does property owned as tenants in common pass on death?
On the death of a co-owner, their share in the property forms part of their estate. It does not pass to the other co-owner automatically; it passes according to their will or according to the intestacy rules if they did not leave a will, or if their will does not deal with their whole estate.
Passing jointly-owned property on death in Scotland
In Scotland, property can be jointly owned by two or more joint owners. When the jointly-owned asset is heritable property (e.g. a house), including or not including a specific legal clause (special destination or survivorship destination clause) in the title deeds will determine whether or not the property will pass automatically to the surviving joint owner on the death of the other joint owner.
Joint owners with a survivorship destination clause. By including a survivorship destination clause into a deed in joint names when buying a property, the share on the property of the first owner to die will pass automatically to the surviving joint owner. This type of clause is deemed to be a contractual (not testamentary) destination; one joint owner cannot unilaterally revoke it and the property will pass as per the destination, irrespective of the terms in the joint owners’ wills.
Joint owners (with no survivorship destination clause). If the joint owners decide not to include a survivorship destination clause, their share on the property will not pass automatically to the surviving joint owner; it will pass according to their will or according to the intestacy rules, as applicable.
Special destinations are not exclusively related to heritable property and they can apply to moveable property, too.
Passing jointly-owned property on death in Spain
In Spain, things work a bit differently, as joint tenancies do not exist. Therefore, a co-owner’s share on a property never passes automatically to the other co-owner by reason of survivorship.
Assets pass on death according to testamentary succession or intestacy rules, as applicable, in a four-step process:
(1) When a person dies, those entitled to inherit are notified about the death.
(2) Those entitled to inherit receive an offer of an inheritance, which they can accept or reject.
(3) They accept the inheritance by signing a deed before a Spanish notario, formally becoming heirs.
(4) They receive the inheritance.
For Spanish concepts with no equivalent in the law of England and Wales, check my article ‘Nine curiosities related to Spanish wills and succession’.
This article is for informational purposes only, does not constitute legal advice and should not be relied upon as such. Any reliance you place on such information is strictly at your own risk. Please ensure that any information available through this website meets your requirements. ICR Translations will not be liable for any loss or damage arising from loss of data or profits as a result of, or in connection with, the use of this website.
IRENE CORCHADO RESMELLA is a Spanish translator based in Edinburgh. A Chartered Linguist and member of the CIOL, she is also an English-Spanish sworn translator appointed by the Spanish Ministry of Foreign Affairs. Irene specialises in sworn and legal translation (particularly in wills and succession) and is an Affiliate member of STEP. ICR Translations is registered with the Information Commissioner's Office and has professional indemnity insurance.