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It depends entirely on how the property was owned. If the owners were joint tenants, the deceased's share passes automatically to the surviving owner by the right of survivorship — no probate is needed for the property. If they were tenants in common, the deceased's share forms part of their estate and must be dealt with through probate. This page describes the law of England and Wales — see the note at the end for Scotland and Northern Ireland.
When two or more people own property as joint tenants, they each own the whole property together rather than having separate shares. There is no concept of "my half" and "your half" — the ownership is indivisible.
The key legal consequence is the right of survivorship (sometimes called jus accrescendi). When one joint tenant dies, their interest in the property automatically passes to the surviving joint tenant(s) by operation of law. This happens immediately on death — it does not depend on the will, and it cannot be overridden by the will.
This means:
Example
Sarah and James owned their family home as joint tenants. When James died, his share of the property passed automatically to Sarah. Even though James's will left "all my property" to his brother, this did not apply to the house because the right of survivorship took precedence. Sarah became the sole owner without needing probate for the property.
Joint tenancy is the most common form of property ownership for married couples and civil partners in England and Wales. It is simple, automatic, and avoids the need for probate on the deceased's beneficial share of the property, which is why it is the usual choice for couples who want the survivor to take the whole home.
Although the surviving joint tenant becomes the sole owner automatically on death, the Land Registry records still need to be updated to reflect this. The process is straightforward:
Once the application is complete, the title register will show the surviving owner as the sole proprietor and you will receive a confirmation notice. HM Land Registry does not publish a separate timescale for form DJP; its processing times page gives the current position for applications to update the register.
While there is no strict deadline for submitting Form DJP, it is good practice to do it promptly. If the surviving owner later wants to sell or remortgage the property, the buyer's or lender's solicitor will insist that the register is up to date before proceeding.
Tenants in common is fundamentally different from joint tenancy. Each owner holds a defined share of the property — typically 50/50, but it can be any split (60/40, 75/25, etc.). Crucially, each owner's share is a distinct, separate interest that they can deal with independently.
There is no right of survivorship with tenants in common. When one owner dies, their share does not pass automatically to the other owner. Instead, it forms part of the deceased's estate and is distributed according to their will — or, if there is no will, according to the intestacy rules.
This means the deceased could leave their share of the property to anyone: a spouse, a child, a friend, a charity. The surviving co-owner has no automatic right to the deceased's share (unless the will or intestacy rules say otherwise).
It is worth being precise about what does and does not pass here. A legal estate in land is indivisible: under sections 1(6) and 34(1) of the Law of Property Act 1925, the legal title always passes to the surviving co-owner by survivorship, whether the owners held as joint tenants or as tenants in common. What differs is the beneficial interest behind it. So the surviving tenant in common still uses form DJP — and pays no fee — to remove the deceased from the register, and a grant of probate is needed to deal with the deceased's beneficial share, not to update the title.
In practice the executor will need to:
Important
Where a Form A restriction is on the register, a sole surviving proprietor cannot on their own give a valid receipt for the purchase money. HM Land Registry's practice guide 6 sets out the answer: a second trustee is appointed to act alongside the surviving proprietor, and that second trustee “can be the personal representative(s) of the deceased but does not have to be”. The sale can then proceed, with the deceased's share of the proceeds going to the estate. So a sale is not blocked by an executor or beneficiary who will not co-operate — but the money attributable to the deceased's share is not yours to keep.
Many property owners do not know whether they own as joint tenants or tenants in common — the distinction was explained briefly by the solicitor when they bought the property, and promptly forgotten. Here is how to find out:
If you are still unsure after checking these documents, a property solicitor or licensed conveyancer can confirm the position from the title.
Either joint tenant can convert a joint tenancy into a tenancy in common at any time. This is called severance, and it is done by serving a written notice on the other joint tenant(s) under section 36(2) of the Law of Property Act 1925.
Severance is a unilateral act — the other owner does not need to agree. Once the notice is served, the joint tenancy is severed and each owner holds their share as tenants in common. A Form A restriction should then be placed on the title register at Land Registry to record the change.
People sever joint tenancies for several reasons:
Note
Severance must happen during both owners' lifetimes. You cannot sever a joint tenancy after one owner has died — the right of survivorship operates automatically at the moment of death. A notice under section 36(2) only works if it is correctly served on every other joint tenant, and the Form A restriction has to be applied for separately.
The type of property ownership has significant tax implications when one owner dies:
Inheritance Tax (IHT): Regardless of whether the property is held as joint tenants or tenants in common, the deceased's share is included in their estate for IHT purposes. For joint tenants, this is usually 50% of the property's market value (assuming two owners with equal shares). If the property passes to a spouse or civil partner, the spouse exemption means no IHT is payable on that share. For more details, see our guide on Inheritance Tax in the UK.
Residence Nil-Rate Band (RNRB): The additional £175,000 nil-rate band for property left to direct descendants may apply if the deceased's share of the home passes to their children or grandchildren. This is straightforward for tenants in common (the share passes via the will), but for joint tenants it depends on whether the survivor is a direct descendant or not.
Capital Gains Tax (CGT) uplift: When the surviving owner inherits the deceased's share (whether by survivorship or via the estate), they receive a CGT base cost uplift. The inherited share is valued at its market value on the date of death. This is important if the surviving owner later sells the property — the gain is calculated from the date-of-death value, not the original purchase price, for the inherited portion.
Stamp Duty Land Tax (SDLT): If the surviving owner acquires the deceased's share by survivorship (joint tenants) or by inheritance (tenants in common), no SDLT is payable. SDLT only applies if the share is purchased.
Everything above is the law of England and Wales. “Joint tenants” and “tenants in common” are terms of English land law, and form DJP, form AS1 and the Form A restriction are all HM Land Registry forms and entries.
Scotland has a different system of land ownership and a different register. Co-owners do not hold as joint tenants; whether a deceased co-owner's share passes automatically to the survivor depends on whether the title contains a survivorship destination. Property is registered with Registers of Scotland, not HM Land Registry, and the grant is confirmation, not probate. Check the title deed, or ask a Scottish solicitor, rather than applying the rules on this page.
Northern Ireland does use joint tenancy and tenancy in common, but registration is handled by Land Registry Northern Ireland through nidirect, with its own forms and fees. The HM Land Registry forms named above do not apply there.
For further information on property, probate, and inheritance, see these guides: