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If I am taking instructions for a Will and the clients own a property jointly I always ask whether they know if they hold the property as joint tenants or tenants in common? More often than not the client does not know or will ask “what does that mean?”
It is important to establish how a jointly owned property is held as this may affect and alter the advice I give clients when they are thinking of making Wills.
What is a Joint Tenancy?
This type of tenancy means that the parties don’t have distinct shares in the property, they instead own equal shares of the property. If either party died, then the rule of “survivorship” applies. This means that the property automatically passes to the surviving joint tenant. This is regardless of whether or not the parties have Wills.
Tenants in Common
This type of tenancy differs from a joint tenancy in that each party has a distinct share in the property. For example, if two people owned a property, they may hold a 50% share. If either party died the rules of survivorship do not apply in these circumstances and the property will not automatically pass to the surviving owner. Instead, the deceased’s share in the property will fall into their estate and either pass under the terms of their Will or under the rules of intestacy.
Severing a Joint Tenancy
Owing a property under a joint tenancy may not be the right arrangement for some people, especially those who may be remarried couples and have respective children from previous marriages or relationships. It is possible to sever a joint tenancy so that owners can hold their property as tenants in common and then deal with their share of the property under the terms of their Will. This option is becoming increasingly common as a way of estate planning with a view of potentially limiting an inheritance tax liability, limiting care home fees or as a means of providing for children from previous relationships.
If this is something that you would like to discuss further, I would be happy to assist. Please call on 01429 235616 or email cdonworth@tmjlegal.co.uk
