I received a number of queries regarding last month’s blog, the main question being “Is there an alternative to gifting the Family Home?” as some people are not in a position to place their property into a Family Trust.
Following on from this I thought it necessary to advise you about Joint Tenants v Tenants in Common ownership of property and how that can assist in preserving at least a half share of your property.
Firstly, you can hold a property as joint tenants. This means that you hold the property in equal shares and upon the death of either party, the property will be vested solely in the name of the surviving party regardless of any intentions or wishes expressed in the deceased’s Will.
Tenants in Common
Secondly, you may hold the property as tenants in common. This means that you may hold the property in any proportions you wish to specify and upon the death of either party the property is not automatically vested in the name of the surviving party. Instead, the deceased’s share will pass in accordance with the terms of their Will, or in the absence of a Will, their intestacy.
Life Interest Trust Wills
So, how does the above help you?
By holding your property as tenants in common, you are able to leave your respective share of your property to your chosen beneficiaries i.e. your children as opposed to the surviving spouse. In your Will, you can create a trust allowing the surviving spouse to remain living in the property until they die or become unable to live in the property on a permanent basis.
- If you have children from a previous marriage you can ensure that your share of the property passes to your respective children.
- Your share of the property will be protected against any bankruptcy proceedings of the surviving spouse.
- You preserve at least a half share of the property if the survivor requires residential care when assessing care home fees:
- Best case scenario – If neither of you require care, you can preserve the whole of the property for your chosen beneficiaries.
- Worst case scenario – If both of you require care, this defeats the object of the trust.
- Scenario we hope to achieve – If only one person requires care, we can protect at least one half share of the property when assessing care home fees.