Notice of Severance and Gifting Property in Your Will: A Complete Guide for England and Wales

Does Your Will Control Your Property?

The short answer is: it depends. In England and Wales, whether property passes under your will is determined by the type of joint ownership you have.

If you own a property as joint tenants, your share passes automatically to the surviving owner when you die — regardless of what your will says. Your will has no legal effect on that property at all.

If you own a property as tenants in common, your share forms part of your estate and passes under your will to whoever you have named.

If you own a property solely in your own name, it forms part of your estate and passes under your will.

What is a Notice of Severance?

A Notice of Severance is a document that converts joint tenancy ownership into tenants in common ownership. Once served, each owner holds their own distinct share of the property, and that share can be dealt with under their will.

A Notice of Severance can be served by one owner without the other's agreement — though the other owner must be notified. Once served it cannot be undone unilaterally. Both owners then hold the property as tenants in common in equal shares unless a Declaration of Trust specifies otherwise.

The Notice should be kept safely. For additional protection it can be registered with the Land Registry, though this is not a legal requirement. Registering the Notice puts the change on the official public record. We include guidance notes about registration with every Notice of Severance we prepare, though the registration itself is outside our service.

When Do You Need a Notice of Severance?

You should consider a Notice of Severance if:

• You own a property as joint tenants and want to leave your share to someone other than the co-owner in your will
• You want to place your share of a property in trust under your will — for example, a life interest trust to protect your children's inheritance
• You want to prepare a Declaration of Trust recording unequal ownership shares
• Your relationship with the co-owner has changed and you want to protect your share going forward
• You are in a second relationship and want to protect your share of a property for children from a previous relationship

Gifting Property in Your Will

If your property is owned as tenants in common or solely in your own name, you have several options in your will:

Let it fall into your residuary estate — this is the default. Your share of the property passes to whoever you name as your residuary beneficiaries, in the proportions you specify. No specific gift of the property is needed. This is the simplest option.

Gift the property to a specific person — you can name an individual to receive your share of the property directly. This is useful where you want the property to go to someone different from your main residuary beneficiaries.

Place the property in trust — a life interest trust allows a named person (the life tenant) to live in the property after your death while protecting your share for your chosen final beneficiaries. This requires a Complex Will with Property Trust. The property must be owned as tenants in common for this to work.

You cannot gift a property that you own as a joint tenant in your will — the right of survivorship overrides the gift.

What is the Residuary Estate?

Your residuary estate is everything you own that has not been specifically gifted in your will — including money, investments, personal possessions and property that forms part of your estate. It passes to your residuary beneficiaries in the proportions you specify.

If you are happy for your share of a property to go to your residuary beneficiaries — for example, your children equally — you do not need to include a specific gift of the property in your will. It will pass to them automatically as part of your residuary estate, provided the property is owned as tenants in common or solely.

Do You Need a Title Register Check First?

Before making decisions about your will or preparing a Notice of Severance, it is worth confirming how your property is actually owned. Many people assume they know but have never checked the Land Registry record.

Our Title Register Check (£10) provides you with the official Land Registry title register for your property and confirms the ownership type. If a Notice of Severance is needed we can prepare it for £49. If you need a Declaration of Trust to record ownership shares we can prepare that for £79.