Tenants in Common: Where the Dead Owner's Half Goes

If you owned the house as tenants in common and one owner dies, their share does not come to you. It leaves the household. A tenant in common's share is part of their estate, and it passes under their will, or under the intestacy rules if there is no will, to whoever those documents name. That may be you. Very often it is not.

This is the single most important difference between the two ways of owning a home together, and most couples could not say with certainty which one applies to them. Under a joint tenancy the property passes automatically to the survivor, outside the will, with no probate needed for the transfer. Under a tenancy in common each owner holds a distinct share, and that share is theirs to leave to anyone at all. The deeds decide it, not the marriage certificate and not what either of you assumed.

So the practical position after a death can be that you own half a house, live in it, are liable for all of the mortgage on it, and share the ownership with an adult stepchild, a sibling of the person who died, or a beneficiary you have never met. That is uncomfortable, and it is legal.

First, check which one you actually are

Do not rely on memory of a conveyancer's question years ago. Download the title register for the property from HM Land Registry's property search service, which costs a small fee and arrives as a PDF.

Look at the proprietorship register. If it contains a Form A restriction — wording to the effect that no disposition by a sole proprietor under which capital money arises may be registered without a court order — you hold the property as tenants in common. If there is no such restriction, you are almost certainly joint tenants, and the survivor takes the whole property automatically.

Two complications are worth knowing about. A joint tenancy can be severed during the owners' lifetimes by serving a notice of severance, which converts it into a tenancy in common and adds the restriction; this is routinely done during a separation, and sometimes done and then forgotten. And where a previous death was never dealt with properly, the register may be out of date in a way that has to be corrected before anything can happen — a register that still names an owner who died years ago is more common than people expect.

If shares were unequal — one of you put in a much larger deposit, say — there may also be a declaration of trust setting out the split. That document governs how much of the value belonged to each of you, and it matters enormously now.

Where the share actually goes

Once you know it was a tenancy in common, the question becomes simple to state and often painful to answer: what did the will say, and if there was no will, what do the intestacy rules say?

Where there is a will, the share goes wherever it is directed. Some wills leave it outright to the surviving co-owner, which resolves everything. Many, particularly in second marriages, leave it to the deceased's own children instead, sometimes with a right for the survivor to keep living in the house. Some leave it into a trust. Each of these produces a very different life for the person still living there.

Where there is no will, the intestacy rules of England and Wales decide. A surviving spouse or civil partner takes the personal possessions, a fixed statutory legacy, and half of what remains, with the other half going to the deceased's children. Where there are no children, the spouse takes everything. The GOV.UK guidance on who inherits when there is no will sets out the order and the current statutory legacy figure.

The rule that catches people hardest is that an unmarried partner inherits nothing under intestacy, however long the relationship lasted and however much they contributed. If you were not married and there was no will, the deceased's share goes to their children, or failing that their parents, or failing that their siblings — and you can find yourself co-owning your own home with your late partner's family. We have written about that specific trap in unmarried and no will: who gets the house instead of you, and about the version of it that catches couples before they marry in buying together before marriage and where your half goes.

What it is like to co-own with a beneficiary

The day-to-day reality is that you are now in a trust of land with somebody new. Your own share is untouched, and as a beneficial owner you have a right to occupy the property. Nobody can simply arrive and change the locks.

But several things get harder at once. You cannot sell or remortgage without the other owner's agreement, because the Form A restriction exists precisely to stop a single owner dealing with the property alone. Decisions about major repairs need two people to agree and, in principle, two people to pay. And if the new co-owner wants their money and you want to stay, you have a genuine conflict rather than a misunderstanding — they are not being unreasonable in wanting the value of what they inherited.

Courts have also, in some circumstances, required an occupying co-owner to pay an occupation rent to a co-owner who is excluded from the property. It is not automatic and it depends heavily on the facts, but it is the kind of claim that gets raised when relations sour, and it is a reason to take advice early rather than let resentment set.

Meanwhile the mortgage carries on exactly as before. Inheriting nothing does not reduce your liability, and inheriting something does not increase it. If you were both named borrowers you were always jointly and severally liable for the whole balance, so you now owe all of it on one income. Payments still have to be met during the months before probate is granted, which raises its own practical question — see who actually pays the mortgage before probate comes through.

Can you be forced to sell?

Not immediately, and not without a court. In England and Wales, a co-owner or a trustee can apply under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 for an order for sale. The court is not obliged to grant it, and section 15 tells it what to weigh.

• The intentions of the people who created the trust — in most cases, what the two of you bought the house for.
• The purposes for which the property is held, which is usually the strongest argument for a surviving partner: it was bought as a family home and it is still being used as one.
• The welfare of any child who occupies the property as their home, or might reasonably be expected to.
• The interests of any secured creditor, which is where the mortgage lender enters the picture.

In practice most of these disputes settle rather than reach a judgment, because litigation between a bereaved partner and a bereaved family is expensive and awful. But the possibility of an order for sale is what gives the new co-owner leverage, and pretending otherwise does not help. If a will left you the right to live in the property without owning it outright, that is a different arrangement again, with its own rules about who pays for what.

Buying the share back, and what it would take

The usual resolution is that the person living in the house buys the inherited share from whoever now owns it. That requires two things: an agreed value, and the money.

Start with the value, because arguments here are usually really about valuation rather than principle. Get a proper valuation from a surveyor both sides accept, rather than an estate agent's marketing appraisal. As a sense check, HM Land Registry publishes the UK House Price Index, which gives average prices by local authority area and property type using actual completed sales, and is the standard reference used across government for what homes in a given area are really selling for.

Source: HM Land Registry, UK House Price Index, published monthly under the Open Government Licence v3.0.

Then the money. If you can raise it, a remortgage in your sole name is the usual route: you borrow enough to clear the existing mortgage and to pay the beneficiary for their share. That is a new lending decision, assessed on your income alone, and it is entirely possible to be refused on affordability even though you are already fully liable for the existing debt. Age matters too, because the term has to end within the lender's limits.

Where a remortgage is not possible, the realistic options are a private arrangement to pay the beneficiary in instalments, secured properly and in writing; a family member joining the mortgage; or selling and moving somewhere smaller with your share of the proceeds. None of these is comfortable, but the worst version is drifting for two years while interest accrues and relations harden, and then selling anyway.

How couples avoid this in advance

Almost every unhappy version of this story has the same cause: the ownership structure and the will were never checked against each other. A tenancy in common is not a mistake — it is the right choice for plenty of families, particularly where there are children from an earlier relationship, or where two people contributed very different amounts, or where there is a reason to protect a share. The mistake is having one without deciding what happens to the share.

Three things fix most of it. Read the title register so you know what you have. Write wills that say what you both actually intend, taking advice where there are children from more than one relationship. And make sure that whoever is left has the money to buy back the share or clear the mortgage, rather than being dependent on a beneficiary's goodwill.

That last point is where life cover does the work. A policy written for the purpose can pay a sum designed to clear the outstanding mortgage, to fund the purchase of the inherited share, or both — which turns a forced sale into a choice. Written in trust, the money can usually be paid out to the person who needs it without waiting for probate, which matters when the pressure is arriving in months rather than years. Whether cover can be arranged, and on what terms, always depends on age, health and underwriting, so it is not something to leave until a diagnosis. If you want to see where you stand you can get life insurance quotes and have an FCA-authorised broker size it against the balance and the value of the share.

Where a terminal diagnosis has already been made and a policy exists, some cover can pay out before death rather than after, which changes the planning entirely: that is covered in whether terminal illness benefit can clear the mortgage now.

Scotland and Northern Ireland

Scotland does not use the terms joint tenants and tenants in common at all. Co-owners hold pro indiviso shares, and the question of what happens on death turns on whether the title contains a survivorship destination. Where it does, the deceased's share passes automatically to the survivor and the will cannot override it; where it does not, the share falls into the estate and passes under the will or under Scottish intestacy law. That distinction does the same job as the English one, and it catches people just as often — we have set it out in buying in Scotland and how survivorship destinations work.

Scottish succession law also differs in substance. A surviving spouse, civil partner and children have legal rights in the deceased's moveable estate that a will cannot defeat, and on intestacy a surviving spouse has prior rights that include an interest in the family home up to a set limit. Information for Scotland is published on mygov.scot, and the equivalent of probate is confirmation, obtained through the sheriff court.

Northern Ireland follows the England and Wales pattern of joint tenancies and tenancies in common, but its intestacy rules sit in separate Northern Ireland legislation with different fixed entitlements for a surviving spouse, land is registered with Land and Property Services rather than HM Land Registry, and probate is granted through the Probate Office of the High Court. The practical warning is identical everywhere: read the title, then read the will, and do not assume the two agree.

Free and impartial help is available from Citizens Advice and MoneyHelper. The rest of this subject is collected in our guide to mortgages and property when someone dies.

Frequently asked questions

What happens to a tenants in common share when one owner dies?

It forms part of their estate and passes under their will, or under the intestacy rules if there is no will. Unlike a joint tenancy, it does not pass automatically to the other owner, who may end up co-owning the house with someone else entirely — often the deceased's children from an earlier relationship.

Can I be forced out if I do not own the whole house?

Not immediately. You keep your own share and your right to occupy the property, but the new co-owner can ask the court to order a sale. Courts consider the purpose the property was bought for and the needs of anyone living there, including any children, before deciding whether a sale should go ahead.

How do I find out how we own our home?

Download the title register from HM Land Registry for a small fee. A Form A restriction on the proprietorship register means you hold the property as tenants in common. If there is no such restriction, you are most likely joint tenants and the survivor takes the whole property automatically.