Ownership of Property when making Wills
Depending upon the value of your property, it may be possible to use it as a means of Discretionary Trust planning. It is common practise for married couples to own property as “Joint Tenants”. The severance of a Joint Tenancy may be required to change the property ownership to “Tenants in Common” so you and your partner no longer own your whole property together, but own one half each.
Once you are “Tenants in Common” your home will no longer automatically pass to the spouse on death. This is particularly important if you are using Discretionary Trust Wills for non-tax related benefits, for example the protection from future costs or protecting your assets for your children if your spouse remarries. The terms "joint tenants" and "tenants in common" are used to describe the ways in which two or more people can own a property.
The joint owners are regarded by the law as owning the whole of the property without any form of separate share or distinction between them.
On the death of one of the Joint Tenants the whole of the property passes automatically to the survivor. Normally the sole survivor of two Joint Tenants can sell the property and only needs a death certificate to prove their title or ownership. This is a very common and convenient form of ownership between husband and wife where the parties are content for the survivor to be the absolute owner.
The ownership of property held as Joint Tenants cannot be altered by a making a Will.
Tenants in Common
Where co-owners are not married, or have made different contributions to the price, the preferred form of joint ownership will usually be as Tenants-in-Common. This means that the co-owners are regarded in law as having separate and distinct shares.
They may give their shares away by drafting their wishes into a Will; they may even charge or mortgage them to a lender. On the death of a Tenant in Common the share of the deceased co-owner is protected by the requirement that another trustee has to be appointed before the land or property can be sold. If the shares are complex a separate trust deed will usually be drawn up setting the shares out.
What are the benefits to owning your property as Tenants in Common?
- You protect your children’s inheritance in the event that the survivor should remarry.
- It can help protect you from inheritance tax
- It can help protect you from care home fees if either of you should require care later on in life.
- It is in your Will so only you can make a change to it.