Does the surviving tenant in common automatically inherit the deceased's share?

No. Unlike joint tenants, tenants in common do not have survivorship rights. When a tenant in common dies, their share forms part of their estate and passes under their will, or under intestacy rules if there is no will — not to the surviving co-owner automatically.

Can the surviving co-owner prevent the estate from selling the property?

The surviving co-owner cannot prevent a sale indefinitely, but can apply to the court under TOLATA 1996 for an order postponing or preventing sale. Courts consider the purpose of the trust, the welfare of occupying children and the interests of all beneficiaries. A sale can usually be forced eventually.

Do we need probate to deal with a tenants in common property after a death?

Yes, probate is almost always required. The grant gives the executor legal authority to sign the TR1 transfer form on behalf of the estate. Without a grant, the Land Registry will not register a transfer of a tenants in common share.

What if there is no will — who inherits the tenants in common share?

Under intestacy rules, the share passes to the closest surviving relatives in order: spouse or civil partner first, then children, then parents, then siblings. The intestacy rules — not the co-ownership arrangement — determine who inherits.

How long does it take to sell a tenants in common property after a death?

Typically 9–15 months from death to completion. The grant of probate takes 16–20 weeks from HMCTS; once granted, sale negotiations and conveyancing usually take 3–6 months. Disputes between co-owners or a contested will can extend this significantly.

What is a notice of severance and is it relevant after a death?

A notice of severance converts a joint tenancy into a tenants in common arrangement during a person's lifetime. It is not relevant after death — the nature of the co-ownership at the date of death is fixed, and no further severance is possible once someone has died.

Property · Tenants in Common

Tenants in common — what happens when one owner dies?

The surviving co-owner does not automatically inherit. With tenants in common, each owner holds a defined share — typically 50% — that forms part of their estate on death.

It passes under their will, or under intestacy if there is none.

The executor must deal with the deceased's share separately from anything the surviving co-owner holds.

This page covers: tenants in common vs joint tenants · what happens to the share · selling the property · IHT and CGT on the share · transferring to a beneficiary.

§1

Tenants in common vs joint tenants

Tenants in common

Each owner holds a defined share (e.g. 50/50 or 70/30). On death, the share passes under the will or intestacy — not to the surviving co-owner. Common where owners contributed unequal deposits or want to protect shares for children.

Joint tenants

Owners hold as a single unit — no defined shares. On death, the deceased's interest passes automatically to the surviving co-owner by right of survivorship. No executor involvement needed — the survivor becomes sole owner on production of the death certificate.

How to tell which applies. Download the title register from the Land Registry (£3). A Form A restriction ("No disposition by a sole proprietor…") confirms tenants in common. No restriction usually means joint tenants — but check original conveyancing documents for any deed of trust.

§2

What happens to the deceased's share

The share is treated like any other estate asset. It is valued at open-market value at the date of death (usually with a co-ownership discount of 10–15%), reported in the IHT400 if applicable, and either transferred to the beneficiary named in the will or distributed under intestacy. Until that transfer is registered, the executor holds the share as trustee alongside the surviving co-owner.

There is a will

The share passes to whoever the will directs. The executor transfers it — either by assent (if inherited in specie) or by sale and distribution of proceeds. If the beneficiary is the surviving co-owner, the Form A restriction is removed and they become sole owner.

No will (intestacy)

The share passes under the intestacy rules. For a spouse or civil partner this often means the share goes to them — but not always if there are children. An administrator (not executor) deals with the share. Apply for Letters of Administration before any transfer.

§3

Selling the property

A sale requires both the executor and the surviving co-owner to act as trustees. Under s.2 of the Law of Property Act 1925, at least two trustees must sign the transfer to overreach the beneficial interests and give the buyer good title. If the parties cannot agree on selling — or on price — either can apply to court for an order for sale under TOLATA 1996. Agreement is far cheaper.

STEP 1

Obtain probate

A Grant of Probate (or Letters of Administration) is required before the executor can deal with the deceased's share. HMCTS currently takes 16–20 weeks.

STEP 2

Agree the sale with co-owner

Both parties must agree to proceed. Appoint a single solicitor if relationships are amicable — or separate solicitors if there is any dispute.

STEP 3

Execute the transfer jointly

Form TR1 must be signed by the executor and the surviving co-owner. Both signatures are required — one party cannot complete alone.

STEP 4

Distribute the proceeds

The estate's share of net proceeds passes to beneficiaries after deducting IHT, estate debts and administration costs — in that order.

If the co-owner refuses to sell. An application under TOLATA 1996 s.14 asks the court to order a sale. The court considers the purpose of the trust, welfare of any children living there, and interests of secured creditors. It is not guaranteed to succeed — and costs can exceed £15,000–£30,000 if contested. Legal advice is essential before issuing proceedings.

§4

IHT and CGT on the share

Two tax events — at death and at sale — apply to a tenants-in-common share. They are separate calculations and separate filing obligations. Missing either can result in penalties and interest from HMRC.

IHT on death

Valued at open-market date-of-death value, with a co-ownership discount (typically 10–15%) applied. Reported on IHT400 + schedule IHT405. IHT at 40% on value above the available nil-rate band.

CGT on sale

The beneficiary takes the share at probate value as their base cost. CGT at 18% (basic rate) or 24% (higher rate) from 30 October 2024 on any gain since death. Report and pay within 60 days of completion via HMRC's UK Property Account.

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FAQ

Common questions

No — not if they were tenants in common. With tenants in common, each owner holds a defined share (e.g. 50%) that they can leave by will or that passes under intestacy on death.

The surviving co-owner keeps their own share but has no automatic right to the deceased's share. This is the fundamental difference from joint tenancy, where survivorship does apply automatically.

Check the Land Registry title (download at £3 from the Land Registry portal). If there is a Form A restriction on the title ("No disposition by a sole proprietor…"), the property was held as tenants in common.

If no restriction appears, it is likely joint tenancy — but check any original conveyancing documentation or deed of trust, which may override the register.

Not straightforwardly. To sell and transfer good title, you need at least two trustees to overreach the beneficial interests under s.2 Law of Property Act 1925.

In practice: the executor (representing the deceased's share) and the surviving co-owner must both act. If they cannot agree, either party can apply to court for an order for sale under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA).

This is time-consuming and expensive — reach agreement first wherever possible.

The deceased's share is valued at open-market value at the date of death — including any discount for co-ownership. HMRC accepts a discount of typically 10–15% on an undivided share, reflecting the practical difficulty of selling a partial interest.

The share is reported on form IHT400 (Inheritance Tax Account) with supporting valuation. The surviving co-owner's own share is irrelevant to this calculation.

The beneficiary who inherits the share takes it at probate value as their base cost. From 30 October 2024, residential property CGT rates are 18% (basic-rate taxpayer) and 24% (higher/additional-rate) on any gain since the date of death.

The gain is calculated on the inherited share only — not the full property. Report and pay within 60 days of completion via HMRC's UK Property Account.

Yes. Once probate is granted, the executor can transfer the deceased's share to the beneficiary by completing a Land Registry transfer form (TR1 for full transfer or TP1 for a partial transfer).

Both the executor and the surviving co-owner must execute the transfer. Once registered, the beneficiary becomes a co-owner and can deal with the property directly — though any sale still requires agreement between all co-owners.

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