I’m buying a property with my partner, what happens if one of us dies?  

I’m buying a property with my partner, do I need to consider a will to protect my share and what happens to my share of the property should one of us die? JT

MailOnline Property expert Myra Butterworth replies: Buying a property with a partner may be an exciting prospect, but it is important not to overlook the legal implications – especially in the event of one of you dying.

It is particularly important if you’re not a lawyer as there is plenty of legal jargon that could mean you come unstuck.

We speak to a former judge about what you need to consider to ensure your property investment is protected in the sad circumstances of one of you passing away.

Stephen Gold, ex-judge and author, explains: Your home is in the joint names of both you and your spouse or partner. Good work. I don’t want to spoil your day, but had you thought about what will happen to the property when one of you dies? 

It’s good that in this case you have. 

Under the law, you will be taken as owning as joint tenants or as tenants in common (and sorry about the lingo but some of these legal phrases were invented so that no-one except lawyers could understand what they meant).

Stephen Gold is a retired judge and author

If you are joint tenants, when one of you dies during ownership, their interest automatically passes to the other – which could mess things up. For example, your will may have gifted your interest to your children. That won’t count. But if you own as tenants in common, you are each free to gift your interest to a third person although you can still gift to the other. 

It is common for tenants in common to make a will which gifts their interest in the family home to a third person but postpones them getting their claws on it until the surviving spouse or partner has died or remarried, cohabited with another person or disgraced themselves in a public place.

It should be apparent from the title deeds or Land Registry documentation whether you own as joint tenants or tenants in common. The most likely way of discovering how you own is to look at the Land Registry title register for your property. You can order a copy online. It won’t expressly mention ‘joint tenants’ or ‘tenants in common’ because that would be too obvious. However, if you see this restriction recorded in the register for your property, it will mean you are tenants in common. Here goes.

‘No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.’

If you don’t, I would back fifty quid (if I had it) on you being joint tenants. We cannot be certain because a document not seen by the Land Registry may have been drawn up in which you agreed to be tenants in common.

It should be apparent from the title deeds or Land Registry documentation whether you own as joint tenants or tenants in common

Can a joint tenancy be changed over to a tenancy in common?

Yes. It often happens when the relationship of the owners breaks down or to enable a will gift of the property interest to a third party to be effective.

How do you do it? You need a notice of severance which must be given to your co-owner and, where the property is registered at the Land Registry, you should apply to them for registration of what is called a Form A restriction. 

In certain situations, a joint tenancy will become a tenancy in common without a notice of severance. This will happen if one of the owners is made bankrupt. It may also happen if a charging order is made against the property or the interest of one of the owners because they have not settled a debt owed under a court judgment or one of the owners has murdered the other – so please don’t try that. Where the joint tenancy has been automatically converted into a tenancy in common, the likelihood is that it will be a case of 50:50 ownership.

Roofless on death

When your co-owner dies without a will, you could be in trouble. The laws of intestacy step in. If you were joint tenants of your home, you become entitled to the whole of the property, as we have seen.

But if you were tenants in common, the amount due to you under those intestacy laws may be less than the value of your co-owner’s interest in the property, which could lead to the property having to be sold.

What the intestacy laws give you will depend on the type of relationship you had with the deceased and who else is about. If you were married to them or were their civil partner and there are no children, you scoop the lot. You don’t even scoop their back editions of the TV Times where there was neither a marriage nor a civil partnership. Where you were married or partners and there are children (old and ugly ones as well as youngsters), you get the first £275,000 of what they left, and the rest is split as to one-half to you and one-half to the children.

You will also be in trouble where there was a will, you were tenants in common and you have been left nothing or insufficient to cover the value of your co-owner’s interest in the home.

Should trouble lurk, the swingingly titled Inheritance (Provision for Family and Dependants) Act 1975 may come to your rescue. It enables the court to rewrite the intestacy laws or the will if you can show that what, if anything, you stood to get out of either was unreasonable: that you should do better. Among those who can bring a claim are the surviving spouse or partner and – do sit up and pay special attention to this – any other person who immediately before the death was being wholly or partly maintained by the deceased and so that could well bring in cohabitees. There is a time limit for making a claim. It is six months from when letters of administration (for no will) or probate (for a will) are granted. The court does have power to extend that period but being late is a risky business.

Courts do exceptionally have the power to play around with property, which was owned by joint tenants. Instead of the deceased’s interest automatically belonging to the surviving co-owner, it could be clawed back in favour of someone making a claim under the 1975 Act.

Stephen Gold is an ex-judge and author of ‘The Return of Breaking Law’ published by Bath Publishing. For more on service charges, go to breakinglaw.co.uk