It’s a common surprise when someone passes away and their family discovers that a house or investment property does not actually form part of the Will. The reason? It depends on how the property was owned.

In Queensland (and across Australia), there a two main ways people can co – own property – joint tenancy and tenancy in common. The difference might sound technical, but it can have huge consequences for who inherits your share when you die.

Whether you have a home with your partner, a parent, a sibling, or even a friend, it’s worth understanding how these two ownership types work and why it’s so important to check what’s on your property title.

Why ownership type matters

When you buy a property with someone else, your names both appear on the title. But behind the scenes, the law recognizes two very different kinds of ownership.

• Joint tenancy, where you both own the whole property together, not separate portions.
• Tenancy in common, where each person owns a specific chare, such as 50/50 or 70/30.

The distinction matters because when one owner passes away, the law treats the property differently – regardless of what the Will says.

Joint Tenancy – The “Right of Survivorship”

If you and your co-owner hold the property as joint tenants, you both own the entire property together. There are no divided shares – you’re seen as one ownership unit.

This means when one person dies, their share automatically passes to the surviving owner. This happens instantly, by law, through something called the right of survivorship.

Importantly, it doesn’t form any part of your estate and can’t be gifted in your Will. The property goes directly to the other owner, no matter what your Will says.

This type of ownership is most common for married or de facto couples who want their partner to automatically inherit their home without going through probate.

Example:

Sarah and Tom own their Brisbane home as joint tenants. When Sarah passes away, Tom automatically becomes the sole owner. Even if Sarah’s Will leaves “everything to my children”, the house still goes to Tom – because the joint tenancy overrides the Will.

Tenancy in Common – Keeping Your Share Separate

If you own a property as tenants in common, you each hold a distinct share. It might be equal, 50/50 or different (say, 60/40).

The key difference is that your share forms part of your estate when you die. That means it can be left to someone else in your Will – your children, a partner, or even a trust.

Example:

Emma and her brother James own an investment property in Toowoomba as tenants in common, 50/50. If Emma dies, her share doesn’t automatically go to James, it goes according to her Will (for example her children).

This type of ownership is common in investment arrangement or blended families, where each person wants control over what happens to their share.

How to Check How You Own Property

You don’t have to guess – you can easily check your ownership type by looking at your property title. In Queensland, you can order a copy of your title search the Queensland Titles Registry (now managed by Titles Queensland). The title document will say whether you hold the property “as joint tenants” or as “tenants in common”, and if the latter, what percentage each owner holds.

If you aren’t sure, your solicitor or conveyancer can confirm it for you. It’s a small step that can prevent major confusion later.

Why This Can Cause Problems in Wills

Many people assume their share of the house will automatically be distributed under their Will – but if it’s owned jointly, that’s not the case.

This misunderstanding can cause heartbreak and family conflict. For example:

• A parent might believe their share of the family home will go to their children, but if they hold it jointly with a new partner, it will pass entirely to the partner instead.
• In blended families, this can leave step – children unintentionally excluded
• In contrast, if the property is held as tenants in common, children from previous relationships can inherit their parent’s portion – but the surviving partner might not have full ownership of the home they live in.

That’s why good estate planning looks at both your Will and your property ownership – they must work together.

Changing the Ownership Type

You can change the ownership type from joint tenancy to tenancy in common (or vice versa) if everyone agrees. This is called severing the joint tenancy.

It’s done through a simple registration with Titles Queensland, often with help from a solicitor. You don’t need to sell the property to do this – it’s just a legal change in how ownership is recorded.

People sometimes choose to sever a joint tenancy when

• They enter a new relationship and want to preserve inheritance rights for children from a previous marriage
• They want a share of an investment property to go to someone other than the co – owner
• They want more flexibility in their estate planning.

It’s a smart idea to get legal and financial advice before making these changes.

Practical Steps You Can Take Now

If you’re unsure how your property is owned or what happens to it when you die, here’s what you can do.

1. Check your title search (confirm if your property is joint tenancy or tenancy in common)
2. Review your Will (does it match your ownership structure?)
3. Talk to your partner or co – owner (Make sure you both understand the legal implications)
4. Seek legal advice (especially if you’re in a blended family or own multiple properties)

Your home is likely one of your biggest assets – and one of your most personal. Knowing whether you own it as joint tenants or tenants in common can make all the difference when it comes to who inherits it.

A little time spent checking now can prevent big problems later. Whether you want your share to go to your partner automatically or to your children under your Will, the key is to make sure your property ownership matches your intentions.

Because at the end of the day, estate planning isn’t just about who gets what – it’s about peace of mind for you, and fairness for the people you love.

If you’re unsure how your property is owned, or whether your Will properly reflects your intentions, it’s worth seeking legal advice. At Nurture Law, we regularly help individuals and families review their property ownership and estate plans to ensure everything works together as it should. A simple review now can help avoid confusion, unintended outcomes, and family disputes in the future.

If you would like guidance about your property ownership or updating your Will, our team would be happy to assist.