What is the difference between joint tenants and tenants in common?

When 2 or more people own land together in NSW, the title records how they hold it. There are only 2 options, and the choice matters most on death.

• Joint tenants: you own the whole property together, with no separate shares. When one owner dies, their interest ends and the surviving owner or owners hold the whole property. This is called survivorship.
• Tenants in common: each owner holds a defined share, equal or unequal, such as 50/50 or 70/30. When one owner dies, their share stays part of their estate and passes under their will, or under the intestacy rules if there is no will.

Survivorship overrides your will. If you own the home as joint tenants and your will leaves "everything to my children", the home still goes to the other owner. Joint bank accounts often work the same way, although this can depend on the circumstances.

How the Doe family's property passes

To show how this works, take Jane (48) and John (50), a married couple in Western Sydney. They have 2 children together, Mia (19) and Leo (15), and John has a son, Sam (24), from a previous relationship. Their home is held as joint tenants. They also own an investment unit in Penrith as tenants in common in equal shares.

For the Does, only the Penrith unit (and anything else in a sole name) is controlled by their wills. The home passes outside them.

What happens to a tenants in common share when you die?

A tenants in common share is an asset of your estate like any other. Your executor applies for probate, registers a transmission application so the share is recorded in the executor's name, and then either transfers it to the beneficiary or sells it, usually together with the other owner. Our deceased estate property transfer page explains these steps.

Because the share is part of your estate, your will can leave it:

• Outright: to your partner, children or anyone else, in whatever proportions you choose.
• Into a testamentary trust: so a child inherits through a trust rather than owning the inheritance personally, which can protect the inheritance and give flexibility on tax. See our guide to the testamentary trust will.
• As a life interest or right to live there: for example, letting a second spouse live in the home for life, with the share then passing to your children.

This is why a testamentary trust will achieves little for a couple whose main asset is held as joint tenants. If the Does want the home to fund trusts for Mia and Leo, they need to hold it as tenants in common, and the time to change it is when they sign their wills.

How do I check how my property is held?

Do not rely on memory or the contract you signed years ago. The current title is the record that counts. A title search from NSW Land Registry Services shows each registered owner and whether they hold as joint tenants or tenants in common, and in what shares. You can order one through an online information broker, or we obtain it as part of your estate planning consultation.

On the title, owners holding as tenants in common are shown with their shares, for example "as tenants in common in equal shares". Joint tenants are shown as "joint tenants". Check every property, including investment properties and property in other states, which follows the rules of that state.

Can I change from joint tenants to tenants in common without the other owner?

Yes. In NSW, a joint tenant can sever the joint tenancy on their own by registering a transfer of their interest to themselves as a tenant in common. The other owner's consent is not needed, but they are told.

• The form: a transfer severing joint tenancy, signed by you with a statutory declaration giving the other owner's full name and residential address, confirming they are alive, and confirming your lender has been notified in writing.
• Notice to the other owner: NSW Land Registry Services sends a severance notice to the other joint tenant. Registration waits 30 days from that notice unless the other owner consents sooner.
• Lodgement: it is generally lodged electronically by a solicitor or conveyancer.
• Timing risk: if either owner dies before the severance is registered, NSW Land Registry Services will not register it and survivorship will generally apply. If one owner is seriously unwell, do not leave this to the last minute.

The current requirements are set out in the Registrar General's Guidelines. Where both owners agree, they can instead sign a transfer together changing to tenants in common, or back to joint tenants. Our title and ownership changes page covers the process.

Is there stamp duty on changing between joint tenants and tenants in common?

Usually little or none, depending on the circumstances, where each owner's proportion stays the same, for example moving from joint tenants to tenants in common in equal shares.

• Unilateral severance: NSW Land Registry Services' guidelines state stamp duty is not required for a transfer severing a joint tenancy.
• Spouses and de facto partners: a transfer of your home between spouses, or de facto partners who have lived together for at least 2 continuous years, is exempt where they end up owning it in equal shares as joint tenants or tenants in common, subject to Revenue NSW's conditions. See Revenue NSW.
• Changing the proportions: moving to unequal shares, such as 50/50 to 70/30, is a transfer of part of the property and duty can apply to the share that moves. Capital gains tax can also apply, so get advice first.

Where the transfer is not the simple severance, it is still assessed by Revenue NSW, so we confirm the duty position before lodging.

When should you consider tenants in common?

Joint tenancy suits many couples who want everything to go to each other and have no children from other relationships. Tenants in common is worth considering when:

• Blended families and second marriages: each partner can leave their share to their own children, or give the surviving partner a right to live there with the share then passing to their children.
• Testamentary trusts: you want your share of the property to pass into trusts for your children.
• Investing with others: siblings, friends or business partners buying together usually want their share to go to their own family, not to the other investors.
• Unequal contributions: one owner contributed more, and the title should reflect that, such as 70/30.
• Separation: once a relationship ends, most people do not want their share passing to their former partner. Severing is often one of the first steps, together with updating the will.

We look at this at every estate planning consultation, because how a property is held decides whether the will can deal with it at all. Our article on ownership structures covers the wider choices when buying.

Does joint tenancy protect the property from a family provision claim?

Not in NSW. Certain people, including children from earlier relationships, can apply to the court for provision from an estate, generally within 12 months of death, although the court can allow a late claim in some cases. The court can treat property outside the will as notional estate, including a deceased owner's interest in a joint tenancy, and order it to be used to fund provision.

For the Does, if John leaves Sam nothing, the home passing to Jane by survivorship does not stop Sam claiming. The court could designate John's interest in the home as notional estate, as well as looking at John's half of Penrith. Joint tenancy can affect what is easily reachable, but it is not a shield. See our guide to family provision claims in NSW.

Co-owning with friends or family: put it in writing

When people who are not a couple buy together, the title alone does not answer what happens if one wants to sell, stops paying the mortgage, or dies. A co-ownership agreement deals with these questions before they arise:

• Shares and contributions: who paid what, and how sale proceeds are divided.
• Running costs: how the mortgage, rates, strata levies and repairs are shared, and what happens if someone falls behind.
• Exit: how one owner can leave, how the property is valued and whether the others have first option to buy.
• Death: whether the survivors can buy the deceased's share from their estate, and how that is funded, for example by life insurance.

Without an agreement, a co-owner who cannot reach agreement can ask the court to appoint trustees to sell the property, which can be slow and expensive. Hold the property as tenants in common, sign the agreement, and make wills that match it.

What should you do now?

1. Check the title: confirm how each property is held.
2. Match it to your will: decide whether you want each property to pass by survivorship or under your will.
3. Change it if needed: sever or transfer at the same time you sign your will, so the 2 work together.
4. Review after major events: marriage, separation, a new partner, or buying with someone new.

If you would like us to review your titles alongside your will, see our estate planning page or contact us to book a consultation.

This article is general information only, current as at October 2026, and is not legal, financial or tax advice. Estate planning, tax and Centrelink rules change over time and their effect depends on your circumstances. You should obtain advice specific to your situation before acting.