House in Only One Name: What Happens When That Person Dies?

It is surprisingly common for a family home to be registered in only one spouse's name — particularly where one partner bought the property before the marriage, or where conveyancing was handled without both names being added. When that person dies, the surviving spouse's position is more complicated than if they were a named co-owner. This guide explains the rights, protections, and practical steps involved.

The Surviving Spouse's Right to Remain in the Home

A surviving spouse or civil partner who is not on the property title is not automatically at risk of losing their home during estate administration, but they do need to take steps to protect their position.

The Family Law Act 1996 gives a married person or civil partner the right to occupy a property that was the matrimonial home, even if they are not a legal owner. This is known as a "home right". It means that during estate administration, the surviving spouse cannot be evicted from the property while the right exists — even if the executor or a beneficiary would prefer to sell quickly.

However, home rights are not automatic in practical terms. To ensure the right is formally recognised and binding on any buyer or lender, the surviving spouse should register a Home Rights Noticeat Land Registry as quickly as possible after the death. This is done using Form HR1 and costs £40 to register. Once registered, any prospective buyer of the property will be put on notice that the surviving spouse has an occupational right.

How the House Passes: Will or Intestacy

Where there is a will

If the deceased left a valid will, the house passes to whoever is named in the will. In many cases, a spouse will have left the property to the other spouse — either directly or via a life interest trust. Where the will leaves the house to the surviving spouse outright, it will need to be transferred into the surviving spouse's name once probate is granted.

Where there is no will (intestacy)

Where the deceased did not leave a will, the intestacy rules under the Administration of Estates Act 1925 apply. For deaths in England and Wales from 26 July 2023:

• If the deceased was married or in a civil partnership and the estate is worth £322,000 or less, the surviving spouse or civil partner inherits everything
• If the estate is worth more than £322,000, the surviving spouse receives the first £322,000 outright, all personal chattels, and half of the remainder. The other half of the remainder passes to the deceased's children
• If there are no children, the surviving spouse inherits the entire estate regardless of its value

The statutory legacy threshold of £322,000 is periodically reviewed by the Lord Chancellor and may increase over time. In most cases where the family home was the main asset, the surviving spouse will inherit it in full under intestacy — but the position is more complicated where there are children and the property value exceeds the threshold.

Is Probate Required to Transfer the House?

Where a property is in the sole name of the deceased, probate (or letters of administration where there is no will) is almost always required before Land Registry will register a transfer of title. There are no exceptions for spouses — unlike some jointly owned assets, a solely owned property cannot be transferred informally.

The probate process involves:

• Applying to the Probate Registry for a Grant of Probate (if there is a will and the deceased named an executor) or Letters of Administration (if there is no will or no executor is willing to act)
• Completing an Inheritance Tax return (IHT400 or the simpler IHT205 for exempt estates) as part of the application
• Once the grant is issued, using it to authorise the transfer of the property into the surviving spouse's name via a Land Registry form (typically an AS1 assent form)

Probate currently takes an average of 16 weeks from application to grant, though more complex estates or busy periods at the Probate Registry can take longer. During this time, the surviving spouse remains in occupation but cannot formally sell or remortgage the property.

What if the Will Leaves the House to Someone Other Than the Surviving Spouse?

In some cases — for example, where the will was made before the marriage, or where the deceased left the property to children or to a new partner — the surviving spouse may find that they are not entitled to the house under the terms of the will. In this situation, the surviving spouse has potential remedies.

The Inheritance (Provision for Family and Dependants) Act 1975 allows a surviving spouse, civil partner, or certain other dependants to apply to the court for reasonable financial provision from the estate if the will (or the intestacy rules) does not make adequate provision for them. The court has wide powers to award a lump sum, a periodic payment, or a transfer of specific property — including the right to remain in the family home.

A surviving spouse who is left without adequate provision from an estate should seek urgent legal advice. Any application under the 1975 Act must be made within six months of the date the grant of probate or letters of administration is issued — this deadline is strictly enforced. Solicitors may be able to seek an agreement with the estate to extend the period informally while negotiations continue.

Practical Steps: Transferring the Property After Probate

Once probate has been granted and it is confirmed that the surviving spouse is entitled to the property, the transfer is completed as follows:

• The executor completes an AS1 Assent form, transferring the legal title to the surviving spouse as beneficiary
• The AS1 is submitted to Land Registry along with the grant of probate or letters of administration
• Land Registry updates the title register to show the surviving spouse as sole owner
• If there is a mortgage on the property, the lender must be notified and may require the surviving spouse to be formally added to the mortgage — which will involve a credit assessment

The Land Registry fee for an assent depends on the value of the property. It is typically in the range of £40 to £500, on a sliding scale. Many solicitors include the Land Registry filing as part of their overall probate fee.

Surviving spouses should note that receiving a property from a spouse's estate is free of Inheritance Tax, regardless of value, under the spousal exemption. There is also no Stamp Duty Land Tax on an assent from an estate to a beneficiary.