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What happens to jointly owned assets on death?

25 January 2023 Written by Davidson Shirley Solicitors Category: Wills & Estates

When looking to jointly own property and assets, there is a lot to consider, especially what will happen with them when you are no longer here. In this article, we look to address any questions you might have. 

If you are looking to find out more about what happens to your jointly owned assets on death, then speak to our private client solicitors today. You can contact us by calling 01555 662576  or fill out our online enquiry form

What are jointly owned assets?

Jointly owned assets have more than one owner, and in death, this can sometimes lead to confusion on who is entitled to the asset - the surviving owner(s) or the beneficiaries of the deceased owner(s). In Scotland, there are two ways for property to be jointly owned:

  • As common property, also known as 'pro indiviso', 
  • Joint property rights between trustees and partners.

Are there limits on who can jointly own property?

There is no limit on the number of joint owners to a property, however, the more owners there are, the greater the potential for problems. Having more than four owners is likely to make getting a mortgage difficult, but even if you jump that hurdle, making important decisions about the property itself will need the agreement of all owners. This could include renting out the property, selling it or taking a loan out against it, for example. When registering the property, the title deeds will set out how the shares in the property are divided.

Common property, pro indiviso rights

In Scotland, this is the most common way for there to be joint ownership of property, especially between couples. Pro indiviso allows for the shares in the property to be split between the parties. For example, if both partners are named on the title deed, then they will have equal shares in the property. Often a survivorship clause is also found in the title deeds, which deals with the ownership of the property when one party is deceased. Pro indiviso owned property can also be passed through a Will from the surviving partner, or through intestacy if there is no Will, as described below. 

Survivorship Clause

This formal clause, sometimes referred to as a ‘survivorship destination’, can be included in a property’s title deeds, meaning that a joint owner’s interest in the property passes to a fellow joint owner when they die. Unmarried couples may wish to use this clause to ensure their surviving partner receives their share of the property. These clauses can also be used for tax reasons.

It is important to note that having a survivorship clause means you cannot leave the property to someone else in your Will.

What happens if there is no Will?

If a person dies without making a Will, it is called ‘dying intestate’. This means there are no instructions on what the deceased person wanted to happen to their property, money, and possessions that make up their estate. In these cases, the assets are distributed according to a list of legal requirements called ‘The Rules of Intestacy.’

Rules of Intestacy

The rules of intestacy are complex and there are many steps to go through before the estate assets can be divided amongst the beneficiaries. In cases of intestacy, an executor is appointed by applying to the local Sheriff Court with all debts and liabilities distributed in a specific order:

Paying off debts and liabilities

This can include things such as a mortgage, loan or unpaid income tax, for example.

Heritable and moveable estate

Different assets are treated differently and split into two groups:

  • The heritable estate covering land or property owned by the deceased
  • The moveable estate covering all the other assets, such as furniture, money, shares, etc

Prior rights and legal rights

This is where certain beneficiaries receive automatic rights to inherit from the estate. Prior rights are held by the deceased’s husband/wife or civil partner, which tend to be the family home and furniture. Legal rights are held by a surviving husband/wife/civil partner and any surviving children. Legal rights only relate to moveable assets. 

The free estate

This is left after satisfying outstanding debts and meeting prior/legal rights. If there are no children, the remainder estate must be allocated according to the following list of beneficiaries:

  • Parents and siblings
  • Spouse or civil partner
  • Uncles and aunts
  • Grandparents
  • Brothers and sisters of grandparents

Contact our Wills & Estates Solicitors in Lanark, Hamilton, Motherwell & Wishaw

If you are unsure about what route is best for you to take, or you are an executor of a Will and unsure of the steps to take, please contact us on 01555 662576 or fill in our online contact form to find out how we can assist you. 


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