It seems obvious to state that you cannot bequest property that you do not own.  However, in order to be sure of your rights it is important to understand the many principles of property ownership.

If you are single, have no children under the age of 18 and own all your property outright (i.e with no mortgage) you will have very few problems. You can leave your property to whomever you chose.

However if you own any property with another person, such as joint ownership or ownership in common, your rights to bequeath that property in the event of your death will be affected.

This occurs where more than one person owns a property as joint owners.  Upon one owner’s death, his or her share passes to the surviving joint owner or owners.

Jointly owned property passes to the survivor no matter what is stated in your Will.  In order to avoid this situation it is possible to cancel joint ownership inter vivos – this involves an unconditional gift made before your death (for more details, see ownership in common).

When property or land is owned by more than one person under an ownership in common clause, each owner is at liberty to leave his or her share of that property to whomever he or she pleases in a Will. 

This can lead to problems for the surviving partner if the property is a matrimonial home – the partner may need to sell the property in order to pass the gift to the beneficiary.  One simple solution to this problem would be to ensure the survivor has a ‘life interest’ in the home, allowing them to stay in it until their death, at which point the beneficiary gets his or her gift.

In order to change, or sever, from joint ownership to ownership in common one party must inform the other of their intention and secure a signed agreement from that party.  This agreement is known as a Notice of Severance of Joint Tenancy and must be signed by both parties.

If the property still has an outstanding mortgage or other loan secured on it, the lender must be notified.  The local Land Registry Office must also be made aware of the severance.

To summarise the benefits and drawbacks of the above ownership choices:

Joint ownership
• The property is passed to the survivor regardless of any instructions in the Will.
• The property will pass regardless of the amount of time the partner survives.

• This is not the best way to ensure minimal inheritance tax is paid.

Ownership in Common
• The property is passed according to the wishes stated in a Will.

• A life interest in a share protects the surviving partner from having to sell the property to honour a gift.
• A property can be left as a legacy to children.

• This is an effective method of reducing inheritance tax liability.