Severance Of Tenancy Explained: Why Property Ownership Matters In Estate Planning
When two or more people own a property together, the way that ownership is set up can make a big difference. It can affect what happens if one owner dies, how their share of the property is passed on, and whether their wishes in a will can be followed.
This is where severance of tenancy can become important. It may sound like a technical legal term, but the idea is fairly simple. It is the process of changing property ownership from joint tenants to tenants in common. For many families, this can be an important estate planning step. It can help protect a person’s share of the property and make sure it can be passed on according to their will, rather than automatically passing to the other owner.
Joint Tenants And Tenants In Common: What Is The Difference?
In England and Wales, jointly owned property is usually held in one of two ways: as joint tenants or as tenants in common.
If you own as joint tenants, you both own the whole property together. There are no separate shares. If one owner dies, their interest in the property usually passes automatically to the surviving owner. This is known as the right of survivorship. Because of this, the property does not pass under the deceased person’s will in the same way.
If you own as tenants in common, each owner has a separate share of the property. The shares may be equal, such as 50/50, or they may be unequal depending on the arrangement. When one owner dies, their share can pass under their will to their chosen beneficiaries.
This difference can be extremely important. For example, if someone wants their share of the home to pass to children from a previous relationship, or to be protected through a trust in their will, owning as tenants in common may be more suitable.
What Does Severance Of Tenancy Mean?
Severance of tenancy is the process of changing ownership from joint tenants to tenants in common. It does not usually mean selling the property or changing who lives there. It simply changes the legal way the property is owned.
Once the joint tenancy is severed, each owner has a defined share. That share can then be left in a will. This gives greater control over what happens after death and can be especially useful where family circumstances are more complex.
It is important to understand that severance does not automatically change the size of each person’s share. If two people owned the property equally as joint tenants, they will usually become tenants in common in equal shares unless there is a separate agreement or evidence showing otherwise.
Why Might Someone Sever A Joint Tenancy?
One of the most common reasons is estate planning. A couple may want to make sure each person’s share of the home can pass into a trust or to specific beneficiaries under their will. This can be particularly useful where there are children from previous relationships, blended families, or concerns about protecting assets for future generations.
Severance can also be considered after a relationship breakdown or divorce. If the property remains jointly owned, changing to tenants in common may help make each person’s share clearer and prevent one owner’s interest from automatically passing to the other if they die before matters are resolved.
It may also be helpful where one owner wants their share to be dealt with separately for inheritance planning reasons. For example, they may want their share to pass to children, be held in trust, or form part of a wider estate plan.
The key point is control. Severing a joint tenancy can give each owner more control over what happens to their share of the property after death.
How Severance Can Support Your Will
A will can only deal with assets that form part of your estate. If you own a property as joint tenants, your interest in the property usually passes automatically to the surviving owner, regardless of what your will says.
That can cause problems if your will has been written on the basis that your share of the property will go to someone else. For example, you may want to leave your share to children, place it into a trust, or protect it for beneficiaries after your partner’s death. By changing to tenants in common, your share can be included in your estate planning. This means your will can direct what should happen to that share.
This is why severance of tenancy is often considered alongside will writing. The two need to work together. A carefully written will may not achieve the intended result if the property ownership has not been reviewed properly.
How Is A Joint Tenancy Severed?
There are different ways a joint tenancy can be severed. In many cases, one owner can serve a written notice of severance on the other owner. In other situations, all owners may agree to the change and sign the relevant documents together.
Once severance has taken place, the change is usually protected at HM Land Registry by registering a Form A restriction. This records that the property is held as tenants in common. The title register may not clearly say “tenants in common”, so the Form A restriction is often the key indicator.
Although the process can be straightforward in some cases, it is still important to get the wording and registration right. Mistakes can create uncertainty later, especially after someone has died.
Does Severance Affect The Mortgage?
Severing a joint tenancy does not usually remove anyone from the mortgage or change the responsibility for repayments. If both owners are named on the mortgage, they normally remain responsible for it unless the lender agrees otherwise.
This is an important point. Severance changes the way the beneficial ownership of the property is held, but it does not automatically change the mortgage, remove legal obligations, or transfer the property into one person’s sole name.
If there is a mortgage, relationship breakdown, sale, transfer of equity or other financial arrangement involved, further advice may be needed.
Common Misunderstandings About Severance
One common misunderstanding is that severance changes who owns more of the property. In most cases, it does not. It changes the type of ownership, not necessarily the percentage shares.
Another misunderstanding is that a will alone is enough. If the property is owned as joint tenants, the right of survivorship may override what someone thought they had arranged in their will. That is why ownership needs to be reviewed as part of estate planning.
Some people also assume severance is only relevant after divorce or separation. While it is often used in those situations, it can also be a sensible planning tool for married couples, unmarried couples, blended families and anyone who wants their share of a property to pass in a specific way.
Why Professional Advice Matters
Severance of tenancy can be a useful tool, but it needs to be considered carefully. It can affect estate planning, inheritance, property rights, family arrangements and future disputes.
It is also important to make sure your will reflects the ownership structure. If you sever a joint tenancy but do not update your will, your share may not pass in the way you intended.
Good advice can help you understand whether severance is suitable, how your property is currently owned, what paperwork is needed, and whether your will should be updated at the same time.
How Westfield Wills Can Help
At Westfield Wills, we help clients understand how property ownership fits into their wider estate planning. If you own a property jointly, we can help you consider whether joint tenants or tenants in common is more suitable for your wishes.
We can also help ensure your will, trusts and property arrangements work together, so your share of the property is dealt with clearly and in line with your intentions.
Taking time to review this now can help avoid confusion, disputes and unintended outcomes in the future.
Severance of tenancy may sound complicated, but at its heart it is about control. It allows a jointly owned property to be held in separate shares, giving each owner the ability to leave their share through their will.
For many families, this can be an important part of protecting property, planning inheritance and making sure wishes are followed. It is especially relevant for blended families, unmarried couples, relationship changes and anyone who wants their share of a home to pass to specific beneficiaries.
If you own property jointly, it is worth checking how it is held and whether that still suits your wishes. A small legal change now could make a significant difference to your estate planning later.
Important Information
This article is for general information only and does not constitute legal, financial or tax advice. Property ownership, severance of tenancy, wills, trusts and estate planning can have important legal consequences. You should seek professional advice before changing how a property is owned or relying on any estate planning arrangement.
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