Deeds or a Will: which matters most when owning a property?

Despite how morbid it feels, deciding what happens to a property you own when you die is something you need to decide early in the buying process. In fact, you’ll need to tell your solicitor your preferred course of action before you finalise a purchase.

Many people fall into the trap of assuming a Will decides who owns what after they die but in the case of residential property, the title deeds usually have the definitive say.

In this blog, we explain what title deeds are, what a Will is and the different ways to own a property to ensure the home goes to the right person upon your death.

What are title deeds?

In England and Wales, HM Land Registry defines title deeds as ‘paper documents showing the chain of ownership for land and property’. The equivalent is true in Scotland, with title deeds held by Land Register of Scotland. Title deeds show if a property is owned by more than one person or solely, as tenants in common or as joint tenants, as well as prove ownership when buying, selling or distribution upon death.

Title deeds are held by the correlating Government as digital copies but the original paperwork may still reside with the solicitor who acted for the last buyer, or the mortgage lender. 

What is a Will?

A Will is a legally binding document that details how a person would like their possessions and wealth – known collectively as their estate – divided up and distributed after their death. The person making the Will can name beneficiaries – people or organisations  - who will inherit possessions, including property.

How should a property be held?

The simplest scenario is if you are the only property owner – known as sole ownership - and there is no other name on the title deeds. You would use a Will to specify who would inherit the property as there would be no other beneficiary on the title deeds. Things take on a different complex when multiple people are involved in buying the same property.

If you’re buying with someone else

If you co-own a property and are 100% sure you would like to leave your share to the other owner, title deeds that detail a joint tenancy is essential. On your death, your share of the property would automatically transfer to the joint owner named on the deeds. In Scotland, this is known as a ‘survivorship destination’ clause. Joint tenancies and ‘survivorship destination’ clauses almost always take priority, even if the deceased left their share of the property to someone else in their Will.

There is another way to own a property and that’s as tenants in common. This allows up to four people to be named on the title deeds and each can own a varying share of the property: 50%, 25%, 15% and 10%, for example. 

A Will is critical if a property is owned as tenants in common as the Will legally specifies who should benefit from the deceased’s share. For example, when four friends own a property as tenants in common, one person can use their Will to leave their share to a sibling or a child and not the property’s co-owners.

How to avoid complications & contests

Some of the most common and complex cases arise after a person leaves a property in their Will to someone not on the title deeds – usually when a property is held as joint tenants or as tenants in common. 

A person may have what the law calls a ‘beneficial interest’, even if they are not on the title deeds or have no immediate right to the property. Any beneficiary not named on the title deeds or in a Will can use The Trusts of Land and Appointment of Trustees Act 1996 to mount a claim to a property in an estate. A court will take into account any mortgage payments, household bills and payments for repairs and renovations the claimant has made, potentially awarding them the right to live in, benefit from or sell a named property.

Someone not named on the title deeds can also pursue ‘proprietary estoppel’ – when a property owner made a promise but then went back on their word. 

We urge buyers to seek legal advice from a conveyancing solicitor ahead of any property purchase, making sure their ownership status, title deeds and Wills align. Please contact us for a list of recommended conveyancing solicitors.