When you buy a property with someone else — a partner, a sibling, a friend, or an adult child — your Conveyancer or Solicitor will ask a question that's easy to skim past on settlement day: will you own the property as joint tenants, or as tenants in common?
It sounds like paperwork. It isn't. This single choice determines what happens to your share of the property if you pass away — and it can override what's written in your will.
The Two Ownership Structures, Explained
Joint Tenants Each owner holds an equal, undivided share of the property. If one owner dies, their share automatically passes to the surviving owner(s) — regardless of what their will says. This is known as the right of survivorship.
Tenants in Common Each owner holds a specific, defined share of the property (which doesn't have to be equal — for example, 70/30). If one owner dies, their share does not automatically go to the other owner. Instead, it forms part of their estate and is distributed according to their will (or the rules of intestacy if there's no will).
Why this is important
Most couples buying their first home together default to joint tenants without a second thought and for many, that's the right structure. But problems arise when:
You're buying with a sibling, friend or business partner and want your share to go to your own children, not automatically to the co-owner
You've contributed unequal amounts to the deposit and want that reflected in ownership shares
You're in a blended family and want to make sure your share ultimately passes to your own children
Your will already names specific people to inherit "my share" of the property but the ownership structure means there's no "share" to leave, because it will pass automatically to the co-owner
We regularly meet Northern Beaches clients who've had a will drawn up naming their children as beneficiaries of their home, only to discover, sometimes years later, that the property was held as joint tenants with a former partner, business associate, or sibling. The will's instructions on that asset are, in that scenario, legally irrelevant.
Getting It Right From the Start
The good news is this is entirely avoidable with the right advice at the right time — ideally before you exchange contracts, not after.
At Freshwater Legal Pty Ltd, we look at both sides of this equation:
During conveyancing, we make sure you understand exactly what ownership structure you're signing up for, and why it might (or might not) suit your circumstances
During wills and estate planning, we check that your will and your property ownership structure actually align so your assets go where you intend, not where a decades-old settlement form defaults them to
If your circumstances change, for example a relationship ends, a co-owner passes away, or you simply want to revisit the decision, it's possible to sever a joint tenancy and convert it to a tenants in common arrangement, or vice versa. This isn't something to guess at; it needs to be documented correctly and registered with NSW Land Registry Services.
One Conversation Can Save Your Family Years of Dispute
Property and estate planning aren't two separate boxes to tick, they're two parts of the same plan. A mismatch between how you own a property and what your will says is one of the most common (and most preventable) causes of family disputes and probate delays we see.
Buying property with someone else, or unsure how your current property is held? Contact us anytime to review your ownership structure and make sure your Will actually reflects your wishes.
This article provides general information and does not constitute legal or financial advice. Government schemes, eligibility requirements and legal obligations may change. Advice should be obtained based on your individual circumstances.