Right of Survivorship Explained
When you own a property equally with another individual as Joint Tenants, your share of that property will pass to the surviving owner on your death. This is known as the Right of Survivorship.
If you own a property as Joint Tenants, you cannot dictate who you want to leave your share of your property to. It automatically goes to the other Joint Tenant (Joint Owner) under the Right of Survivorship.
You may not want to leave your share of property to the individual you jointly own the property with when you die. Instead, you may wish to protect your share of the property so it passes to your family rather than being used for care home fees. To protect your share of the property against care home fees, you will need to create a Trust. You must also own your property as Tenants in Common which we explain below.
For initial legal advice get in touch with our Wills and Trusts Solicitors.
Tenants in Common Explained
Owning a property as Tenants in Common rather than Joint Tenants allows you to own an unequal percentage share in the property. The Right of Survivorship does not apply if you own a property as Tenants in Common. This means your share of the property will pass under the terms of your Will or the Rules of Intestacy.
If you do own your property as Tenants in Common you should consider making a Will. This is to makes sure your share of your property passes to your loved ones. For example, if you own your home with your partner and you have children from another relationship, you may wish to make a Will leaving your share of your property to your children.
This protects your children should your surviving partner go on to remarry as your share of the property remains ring-fenced for your children under the terms of your Will.
The other advantage of owning your property as Tenants in Common is that it cannot be used towards your surviving partner’s care providing you leave your property to your children or in trust under the terms of your Will.
Can You Change from Joint Tenants to Tenants in Common?
Yes you can change your property ownership from Joint Tenants to Tenants in Common by ‘Severing the Joint Tenancy’.
It’s best to get advice from a Wills and Trusts Solicitor if you’re considering changing from Joint Tenants to Tenants in Common.
You may need to update your Will to provide for your family or create a ‘Life Interest Trust’. A Life Interest Trust enables you to leave your share of your property to your surviving partner which will allow them to live in the property until the die. Once they die, your share of the property will be given to the beneficiaries named in your Will.
If you want control over who gets your share of your property when you die, you do need to make a Will. Otherwise, the complicated and sometimes unfair Rules of Intestacy will apply.
How Simpson Millar Can Help You
One of our experienced team of Wills and Trusts Solicitors can help you decide exactly what you want to achieve in your later life planning and make sure that they help you get your Will and any necessary Trusts to reflect what you want.
Getting advice from a specialist Solicitor allows you to get the best advice and makes sure everything is done correctly.
They can help you to change from Joint Tenants to Tenants in Common and also write you a Will so you can decide who inherits your share of the property.
Make these changes to how you own your property as soon as you can. It’s never too early to start planning for your future.
One of our experienced Wills and Trusts Solicitors will be happy to help you.
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