Will solicitors say when people decide they don’t need a Will it is often because they think that the family home will automatically be inherited by their husband or wife. When people decide that they do need a Will it is normally because they are concerned about inheritance and the family home and want to make sure their partner can continue to live at the property.
Will and private client lawyer, Chris Strogen, says that it comes as a surprise to many people that if they jointly own a family home, their share in the property won’t necessarily pass by their Will (or under intestacy rules if they decide to not make a Will). Whether your share in the family home passes under your Will or not depends on whether you own the jointly owned property as joint tenants or as tenants in common.
In this article we look at:
- Joint property ownership and estate planning
- The family home and your Will
- Severing a joint tenancy
- The family home and estate planning options
- Reviewing your Will
Joint property ownership and estate planning
When you make a Will, it is crucial to check if you own any jointly owned property as joint tenants or as tenants in common with your co-owner. The jointly owned property could be:
- The family home
- A holiday home
- A buy to let property
- Investment property
- Commercial property
Whatever the nature or purpose of the property, a quick check can establish if you and your co-owner (or co-owners) own the property as joint tenants or as tenants in common.
The difference in type of joint ownership is very important because property owned as joint tenants is automatically inherited by your co-owners. Jointly owned property that is owned as tenants in common is different. If one co-owner passes away then their share in the tenancy in common owned property passes by their Will. If they have not made a Will then their share in the property passes under intestacy provisions.
The family home and your Will
Many people think they don’t need a Will as their house will automatically pass to their partner. That may be the case if you are married or you own the property as joint tenants. It won’t be the case if you own the jointly owned family home with your unmarried partner as tenants in common and you don’t make a Will. That is because your share in the property will pass under intestacy rules and your unmarried partner will not benefit under those rules. Your unmarried partner might be able to bring a claim against your estate if they fall within the definition of a ‘dependant’ and there is a lack of reasonable financial provision for them. However, that involves uncertainty and extra expense and worry; all of which can be avoided by taking private client advice, estate planning and getting a Will drawn up.
Severing a joint tenancy
If you jointly own a property with a co-owner, you may realise that you don’t want your co-owner to inherit your share in the property. For example, you may own a family home with your former husband or ex-wife or you may own an investment property with a sibling or friend. To avoid your co-owner inheriting your share of the jointly owned property you can sever the joint tenancy so you hold the property as tenants in common. You don’t need your co-owner’s agreement or consent to sever the joint tenancy.
If you sever the joint tenancy there are two points to note:
- You need to make a Will as without a Will your share in the property will pass under intestacy rules. If you have an existing Will you should consider reviewing the Will to make sure that it is still up to date and that it is inheritance tax efficient and you have minimised the risks of your Will being challenged.
- If you sever the joint tenancy and your co-owner passes away, their share of the property will pass under their Will or under intestacy rules. If the joint tenancy had not been severed the property would have passed automatically to the co-owners.
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The family home and estate planning options
If your family circumstances are complicated you may be concerned about making a decision on whether to make a Will or review your Will or decide on whether to jointly own your property as joint tenants or as tenants in common.
You may be concerned about leaving your share in the family home to a new partner as you feel that need to balance the needs of your new partner with the needs of your children from a previous relationship. There are a range of estate planning options to help you achieve a balance that you are comfortable with. For example, you could give your partner a life interest in your share in the family home so they can continue to live in the property but if they sell up or pass away then your share of the property will pass to the beneficiaries named in your Will.
Reviewing your Will
You may have made your Will many years before you bought your jointly owned property or the value of your estate may have changed. That is why it is important to review your Will to ensure your share of your property passes to the person or people you want to leave it to. By reviewing your Will on a regular basis, as family and financial circumstances change, you can minimise the risk of your Will being challenged and protect your loved ones.