I am buying property with my partner, should I consider a will to protect my share and what happens to my share of the property if one of us dies? J.T.
I am buying property with my partner, should I consider a will to protect my share and what happens to my share of the property if one of us dies?
MailOnline property expert Myra Butterworth answers: Buying a property with a partner can be an exciting prospect, but it’s important not to overlook the legal implications, especially in the event that one of you dies.
This is particularly important if you are not a lawyer, as there is a lot of legal jargon that could throw you off track.
We spoke to a former judge about what you should consider to ensure your real estate investment is protected in the sad circumstances of one of you passing away.
Stephen Gold, former judge and author, explains: Your home is in the joint name of you and your spouse or partner. Good work. I don’t want to ruin your day, but have you thought about what happens to the property when one of you dies?
It’s good that in this case you have it.
Under the law, you will be considered an owner as a joint tenant or as a tenant in common (and excuse the jargon, but some of these legal phrases were invented so that no one except lawyers could understand what they mean).
Stephen Gold is a retired judge and author
If you are joint owners, when one of you dies during ownership, your interest automatically passes to the other, which could mess things up. For example, your will may have gifted your interest to your children. That won’t count. But if you own as tenants in common, each of you is free to gift your interest to a third person, although you can still gift the other.
It is common for tenants in common to make a will in which they assign their interest in the family home to a third person, but postpone putting it in their clutches until the surviving spouse or partner has died or remarried, has cohabited with another person or has been dishonored. a public place
It must be clear from the title deeds or Land Registry documentation whether you own as co-owners or as tenants in common. The most likely way to find out how you own it is by looking at the Land Registry title record for your property. You can order a copy online. It will not expressly mention ‘co-owners’ or ‘common tenants’ because it would be too obvious. However, if you see this restriction registered in your property registry, it means that you are tenants in common. Here it goes.
‘No arrangement by a sole proprietor of registered estate (other than a trust corporation) under which capital money arises should be registered unless authorized by court order.’
If they don’t, I’d bet fifty pounds (if I had any) that they’re joint owners. We cannot be sure because it is possible that a document not seen by the Land Registry was drafted in which they agreed to be tenants in common.
It must be clear from the title deeds or Land Registry documentation whether you own as co-owners or as tenants in common.
Can a joint tenancy be changed to a tenancy in common?
Yes. It usually occurs when the relationship of the owners is broken or to make effective a testamentary gift of the interest in the property to a third party.
How do you do it? You need a separation notice that must be delivered to your co-owner and in case the property is registered with the Land Registry, you must ask them to register what is called a Form A restriction.
In certain situations, a joint tenancy will become a joint tenancy without a notice of termination. This will happen if one of the owners goes bankrupt. It can also happen if a collection order is issued against the property or interest of one of the owners because they have failed to pay off a debt owed under a court judgment or one of the owners has murdered the other, so don’t try that. . When the joint tenancy has automatically become a tenancy in common, it is most likely a case of 50:50 ownership.
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When your joint owner dies without a will, you could be in trouble. Intestate laws intervene. If they were joint owners of your house, they are entitled to the entire property, as we have seen.
But if they are tenants in common, the amount owed to them under those intestacy laws may be less than the value of their joint owner’s interest in the property, which could lead to the property having to be sold.
What the intestacy laws give you will depend on the type of relationship you had with the deceased and who else it was. If you were married to them or were their civil partner and there are no children, you keep the lot. You don’t even get the old editions of the TV Times where there was no marriage or civil union. When you were married or in a relationship and there are children (old and ugly, as well as young), you get the first £275,000 of what they left behind, with the rest split half to you and half to the children.
You will also be in trouble where there was a will, you were tenants in common, and you have been left nothing or insufficient to cover the value of your joint owner’s interest in the home.
Should problems arise, the Inheritance (Provision for Family and Dependents) Act 1975, with the swinging title, may come to your rescue. It allows the court to rewrite the intestate laws or the will if you can show that what you expected to get from either of them was unreasonable, if anything: that you should do better. Among those who can claim are the surviving spouse or partner and — sit back and pay special attention to this — anyone else who immediately prior to death was being supported in whole or in part by the decedent and so might well bring cohabitants . There is a time limit to make a claim. It is six months from when letters of administration (without a will) or legalization (for a will) are granted. The court has the power to extend that period, but being late is risky business.
Courts exceptionally have the power to tamper with property, which was owned by joint tenants. Rather than the decedent’s interest automatically belonging to the surviving joint owner, it could be recovered in favor of someone making a claim under the 1975 Act.
Stephen Gold is a former judge and author of ‘The Return of Breaking Law’ published by Bath Publishing. For more information on service charges, go to breaking the law.co.uk