Do I need probate for property held as tenants in common?
Almost always yes. The deceased's share is part of their estate, and the Land Registry will not transfer it, nor a buyer accept it, without a grant.
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The short answer
- A tenants-in-common share does not pass to the surviving co-owner. It passes under the deceased's will or the intestacy rules, so it is part of the estate.
- A grant is needed to deal with that share: to transfer it to a beneficiary (even the co-owner) or to sell the property with clean title.
- This is true whatever the share is worth. There is no small-estate exception for land.
- You can tell from the Land Registry title. A "Form A restriction" means tenants in common.
- The survivor can stay in the home meanwhile. Nothing has to happen quickly unless there is a sale.
Couples who took advice about care fees, second marriages or leaving a share to children from a first marriage often own their home as tenants in common, and are sometimes surprised to find that this well-intentioned arrangement is exactly what makes a grant unavoidable on the first death. Friends and siblings who bought together usually own this way too.
Why the share needs a grant
Tenants in common each own a distinct share of the property. When one dies, their share does not pass to the other owner; it passes to whoever the will or the intestacy rules say. That makes it an estate asset, and estate assets held as land can only be transferred by a personal representative holding a grant.
In practice the block appears in one of two places. If the family wants to transfer the share to a beneficiary, the personal representative signs an assent (form AS1) and the Land Registry will only register it against a grant. If the family wants to sell, a buyer's solicitor will see the Form A restriction and require either the personal representative, holding a grant, to join in the sale, or a second trustee to be appointed alongside the survivor. The second-trustee route lets a sale complete without a grant, but the deceased's half of the proceeds still belongs to the estate and still needs a personal representative to receive and distribute it, so it rarely avoids the grant for long.
How to check
Order an official copy of the register for the property from the Land Registry, £7 online. Look at the proprietorship register (section B). If it contains a Form A restriction ("No disposition by a sole proprietor of the registered estate under which capital money arises is to be registered unless authorised by an order of the court"), the property was held as tenants in common. If there is no such restriction, it was held as joint tenants and passes to the survivor without a grant: see if everything is in joint names.
Two other places to look: the transfer deed from when the property was bought, which will have a box ticked, and any "notice of severance" served by one owner on the other later, which converts a joint tenancy into a tenancy in common from the date it was served. Solicitors who advised on wills leaving a share to children will very often have served one.
Where the will leaves the share on trust
The commonest reason to hold as tenants in common is a will that leaves the deceased's share to children, or on a "life interest" trust that lets the survivor live in the home for life with the share passing to children afterwards. Either way the grant is needed so that the executors can vest the share in the trustees or beneficiaries and register the change.
With a life interest trust the survivor's position is protected: they cannot be made to sell or move, and the trustees (often the survivor and one child) hold the share for them. For inheritance tax the share is treated as passing to the spouse and is exempt on the first death. The values and the trust deed should be kept carefully, because they will be needed on the second death.
What to do
- Confirm the ownership from the title, as above.
- Get the property valued at the date of death. Two or three estate agents' written opinions are usually accepted; HMRC may ask for a surveyor's valuation for larger estates. The deceased's share is normally valued at a discount of 10 to 15 per cent from half the whole, because a half-share with a sitting co-owner is worth less than half a vacant house.
- Apply for the grant once the whole estate has been valued. Digital applications are currently taking around five weeks.
- Register the change with an assent (AS1) if the share is being transferred, or complete the sale with the personal representative joining in.
Nothing about this requires speed. The survivor can remain in the home; the estate simply cannot be finished until the grant is obtained.
Common questions
Is a grant of probate needed for tenants in common?
Yes, in almost every case. The deceased's share passes under their will or intestacy rather than to the co-owner, which makes it an estate asset. The Land Registry will not register a transfer of it, and a buyer will not complete a sale, without a personal representative holding a grant.
What happens to a tenants-in-common share when one owner dies?
It passes to whoever the deceased's will names, or to their relatives under the intestacy rules if there is no will. The surviving co-owner keeps their own share and continues to live in the property. The two owners of the property are now the survivor and the estate, until the share is transferred.
Can the surviving owner sell a house held as tenants in common without probate?
A sale can technically complete if a second trustee is appointed alongside the survivor to give a valid receipt, but the deceased's share of the proceeds belongs to the estate and a personal representative is needed to receive and distribute it. In practice buyers' solicitors expect the personal representative, with a grant, to join in the sale.
How do I know if a property is joint tenants or tenants in common?
Look at the Land Registry title. A Form A restriction in the proprietorship register means tenants in common; no restriction means joint tenants. An official copy costs £7. The original transfer deed and any notice of severance will also say.
Does probate apply to tenants in common if the survivor inherits the share anyway?
Yes. Even where the will leaves the share to the surviving co-owner, it passes under the will rather than by survivorship, so a grant is needed for the executor to assent it to them. Only a joint tenancy passes without a grant.
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Important
Solace is not a firm of solicitors and does not provide legal, tax or financial advice. We are an estate administration service and we are not regulated by the Solicitors Regulation Authority, the Financial Conduct Authority or any equivalent body. Nothing in this guide constitutes legal, tax or financial advice, and no solicitor–client relationship is created by reading it.
This article is general information only. It reflects the position in England and Wales at the date shown above; the law and the figures change, and Scotland and Northern Ireland differ in important respects. It may not apply to your circumstances. Whether a particular estate needs a grant is ultimately decided by the organisations holding the assets, and their limits change. Administering an estate carries personal legal responsibility, and you should obtain advice from a qualified solicitor, accountant or other regulated professional where appropriate. Always check current rates, fees and deadlines against GOV.UK before acting.