Is Probate Required for Tenants in Common?

When someone who owns property passes away, one of the first questions families ask is whether probate will be needed. This is especially important if the property was owned as tenants in common.

In most cases, probate is required for tenants in common, because the deceased person’s share of the property forms part of their estate. Unlike joint tenants, where ownership passes automatically to the surviving owner, tenants in common ownership requires formal legal steps to transfer or sell the deceased’s share.

What Does Tenants in Common Mean?

Property in England and Wales can be owned in two main ways:

Joint tenants – Both owners hold the whole property together. When one owner dies, their share automatically passes to the surviving owner. This is called the right of survivorship.

Tenants in common – Each person owns a defined share (for example, 50/50 or 70/30). On death, their share becomes part of their estate and does not automatically transfer to the surviving co-owner.

This difference makes probate far more likely for tenants in common.

Learn more in Joint Tenants or Tenants in Common: What’s The Difference?

What Is Probate and Why Is It Important?

Probate is the legal process of proving the validity of a Will and giving authority to the executor to deal with the deceased’s estate. If there is no Will, the process is called letters of administration.

Probate may be needed to:

– Access bank accounts and release funds.

– Transfer or sell property.

– Distribute assets to beneficiaries.

For tenants in common, probate is usually needed because a property share cannot be legally transferred or sold without it.

Learn more in When Is Probate Required?

Is Probate Always Required for Tenants in Common?

In most cases, yes – probate will be required. The deceased’s share of the property forms part of their Estate and must be dealt with either under their Will or under The Rules of Intestacy.

Exceptions are rare, but probate may not be required if:

– The estate is very small and contains no property.

– Ownership is held within a trust arrangement (less common).

However, when property is involved, HM Land Registry almost always requires a Grant of Probate (or Letters of Administration) before a transfer or sale can take place.

It is always advised to consult with a probate solicitor to receive advice on your individual circumstances.

What Happens to the Deceased’s Share?

The next steps depend on whether the deceased made a Will:

If there is a Will – The share is transferred to the named beneficiaries. For example, someone might leave their 50% share to their children.

If there is no Will – The share passes under the rules of intestacy, which usually prioritise spouses, civil partners, and close relatives.

Either way, probate gives the legal authority to complete the transfer.

Example Scenario

Two relatives own a house as tenants in common, each holding a 50% share. One of them dies, leaving their share to a sibling in their Will. The surviving friend keeps their 50%, but the other half becomes part of the deceased’s estate.

Probate is required before the sibling can inherit the share or the property can be sold.

Planning to Reduce Complications

If you currently own a property as tenants in common, you can take steps to make things easier for your loved ones:

Write a valid Will – Ensure your share passes to your chosen beneficiaries with a valid Will written by a Will writing solicitor.

Consider a Trust – Some people use trusts to protect assets and plan for future care costs.

Take legal advice – A probate solicitor can explain the best way to structure ownership for your circumstances.

Frequently Asked Questions About Probate and Tenants in Common

Do tenants in common avoid probate?

No. Unlike joint tenancy, tenants in common ownership almost always requires probate.

Can a property be sold without probate?

No. If an owner has died, probate is required to transfer or sell their share.

What if there is no Will?

If the deceased did not leave a Will, their share is distributed under intestacy rules. Probate (or letters of administration) is still required.

Does a small estate still need probate?

Even if other assets are small, property ownership typically triggers the need for probate.

Probate Solicitors

If you own property as tenants in common, probate will almost always be required when one owner dies. The deceased’s share of the property becomes part of their estate and does not automatically transfer to the surviving co-owner.

To avoid unnecessary delays and disputes, it’s vital to make a valid Will and seek legal advice about how your property should be handled.

Our probate and will writing solicitors can help you with:

– Tracking down a Will.

– Dealing with probate and dealing with all Grant of Representation paperwork.

– Advise on and pay inheritance tax.

– Advising you regarding the terms of the Will.

– Providing advice and information to you regarding your responsibilities as a personal representative.

– Obtaining valuations of the assets and liabilities, including any debt, in the estate.

– Dealing with a complicated estate where there is no Will.

– Dealing with complex arrangements in a Will, such as assets held in a Trust.

– Dealing with foreign assets in an estate.

– Deal with any business ownership or interests.

– Deal with any investments.

– Encashing the assets and paying any liabilities out of estate funds.

– Work with Tracing Agents and locate hard to reach family members.

– Distributing the estate based on the instructions in the Will.

The main benefit of having a solicitor is that they make estate administration easier. They help reduce stress and ensure you get the best outcome possible.

Howells Solicitors have a strong record of great service and positive client feedback. We rank as one of the top law firms in South Yorkshire for estate planning solicitors on review solicitors. We also rank as one of the top law firms for estate planning solicitors on the Three Best Rated website.

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