Quick summary:
- How you own property determines what happens to it when you die – not just what your Will says
- Joint tenants: the surviving owner automatically inherits, regardless of the Will
- Tenants in common: your share forms part of your estate and is distributed according to your Will
- A joint tenancy can be severed and converted to tenants in common – but it’s a decision that needs careful legal advice
- Blended families face particular risk: joint ownership can unintentionally cut out children from previous relationships
For many Western Australian families, the family home is often the most significant asset in the estate. Yet it is also one of the most commonly misunderstood aspects of inheritance. This is because the way property is owned determines what happens to it on death, and the two most common forms of joint ownership can lead to very different outcomes.
Two types of joint ownership, two different results
Joint tenancy
If you hold property as joint tenants, each owner holds an equal and undivided share of the whole.
The key feature is the right of survivorship: when one owner dies, their share automatically passes to the surviving owner or owners, no matter what the Will says. This means the property does not form part of the deceased’s estate. It cannot be distributed under the Will or used to pay most estate debts or claims (with limited exceptions).
The change in ownership is completed by registering the death with Landgate, after which the surviving owner becomes the sole owner.
Tenants in Common
When property is held as tenants in common, each owner has a specific share in the property, which may be equal or unequal. Unlike joint tenancy, there is no right of survivorship.
On the death of an owner, their share becomes part of their estate and is distributed according to their Will, or under the rules of intestacy if there is no Will.
This structure allows co-owners to leave their share to different beneficiaries, for example, directing it to children from a previous relationship rather than a surviving spouse.
How do you know which type of ownership applies?
The form of ownership is recorded on the certificate of title held by Landgate.
It is worth checking as many people assume they hold property as joint tenants when in fact a tenancy in common was created, or vice versa.
Where the title is unclear or the original conveyance documents are unavailable, a lawyer can assist in confirming the position.
Get our ultimate FAQ guide on all things inheritance, Wills, estates and succession.
Severing a joint tenancy
If you hold a property as joint tenants and would rather it be tenants in common, this can be changed. Joint tenancy can be severed, converted into a tenancy in common.
Each co-owner then holds a distinct, divisible share of the property. This is commonly an equal share (for example, 50% each for two owners), but it can also be in unequal proportions if the owners agree. This does not require the agreement of the other joint tenant. Severance is effected by lodging the appropriate transfer documentation with Landgate.
Severance is sometimes used in estate planning to ensure that a share of the family home can be directed by Will, rather than passing automatically to a surviving spouse.
This is a decision with significant legal and practical consequences and should not be taken without careful advice.
Jointly owned property and family provision claims
It is important to note that even where property passes by survivorship and sits outside the estate, the courts have some capacity to take non-estate assets into account when assessing family provision claims in Western Australia.
The position is nuanced and fact-dependent, but it means that joint ownership does not necessarily provide complete protection against a family provision application.
Blended families and second relationships
The intersection between joint ownership and estate planning becomes especially important in blended families. Where a person in a second relationship owns the family home as joint tenants with their new partner, the property will automatically pass to the surviving partner on death, regardless of any intention to benefit children from a previous relationship.
This is one of the most common sources of unintended outcomes in estate administration. It also underscores a simple but powerful point: ownership structure can shape inheritance just as much as a Will. For this reason, reviewing how assets are held should be a central part of any thoughtful estate plan.
Chart the right course
Your Will is only part of the picture. How your property is owned can be just as powerful in determining who ultimately benefits – and in blended families especially, the two don’t always point in the same direction.
Reviewing your ownership structures isn’t a one-off task. Circumstances change – relationships, families, and intentions evolve – and your property arrangements should keep pace.
At Solomon Hollett Lawyers, we help clients take a clear-eyed view of how their assets are held, identify the gaps, and put the right structures in place before it becomes someone else’s problem to fix. Book a confidential consultation with our estate planning lawyers today.
Frequently asked questions about joint property and death
What happens to jointly owned property when someone dies in Western Australia?
It depends on how the property is owned. If held as joint tenants, the surviving owner automatically inherits the deceased’s share by right of survivorship – regardless of the Will. If held as tenants in common, the deceased’s share forms part of their estate and is distributed according to their Will.
Does a Will override joint tenancy?
No. Property held as joint tenants passes automatically to the surviving owner on death. Your Will has no power over it. Only a tenants in common structure allows you to direct your share through your Will.
How do I find out how my property is owned?
The form of ownership is recorded on the certificate of title held by Landgate. If you’re unsure, a lawyer can confirm your position – particularly if the original conveyance documents are unavailable or the title is unclear.
Can a joint tenancy be changed to tenants in common?
Yes. A joint tenancy can be severed, converting each owner’s interest into a distinct share. This doesn’t require the other owner’s agreement and is completed by lodging the appropriate documentation with Landgate. It’s a decision with significant legal and practical consequences and should be made with proper legal advice.
Why does joint ownership matter for blended families?
If you own a property as joint tenants with a new partner, that property will pass to them automatically on your death – even if you intended to provide for children from a previous relationship. Reviewing your ownership structure is an essential part of estate planning in any blended family situation.
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