Joint tenancy or tenancy in common – considerations for inheritance and will-making

Joint tenancy and tenancy in common give different outcomes when an owner dies

Joint tenancy and tenancy in common are ways of owning property with others. Each works differently when an owner dies, see graphic below.  This impacts who will inherit the deceased owner’s share.  These graphics seek to highlight how each tenancy works.

In a joint tenancy, when one owner dies, the surviving one automatically owns the whole property.  This happens independently of any will (and probate) because of the right of survivorship attaching to this tenancy type.

In contrast, under a tenancy in common when an owner dies their share passes to who  they have chosen to give it to in their will.  If no will was left then it is disposed according to  the rules of intestacy.  So having a will is important with this tenancy so the owner can choose who they want to inherit their share.  Read more here on co-ownership, tenancy and their consequences on inheritance and making a will.

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Survivor inherits outside of a will or rules of intestacy.

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In this example two people (red) inherited half each of a share.

 


 

 

 

 

 

 

 

 

The Land titles offices in each state and territory provide helpful explanations on the meaning of tenancy, such as the New South Wales’ Land and Property Information’s What is tenancy? page here.

 

BHS Legal
4 May 2014

Important notice: This article is intended for general interest and information only. It is not legal advice, nor should it be used as a substitute for legal advice. Always consult a legal practitioner and/or other professional for specialist advice specific to your needs and circumstances, and rely on that.

© BHS Legal

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