Category Archives: Commercial Leases

Joint tenants and tenants in common

By Juliet Phillips-James, Director, Gomer Williams (as featured in the Llanelli Star)

Q. I have married for a second time. Both my husband and I have children from our first marriages. We own a house jointly together. I am concerned that should I die before my husband, that following his death my share of the property will pass to his children. How can I safeguard against this happening?

A: You need to first establish how you and your husband own the house. When you bought it your solicitor would have given you the option of owning it as 'joint tenants' or 'tenants in common'. If you elected to own it as joint tenants, on the death of one of you the share of the deceased will automatically pass to the surviving owner. If you opted to own it as tenants in common you both own individual shares in the property (e.g. 50/50) and you can therefore leave your specific shares under your will.

If you own the property as joint tenants you can sever the joint tenancy thus creating a tenancy in common. You then both need to make wills whereby you give each other a life interest in your share of the property and after the death of the second spouse you can bequeath your respective shares to your own children.

By granting your husband a life interest in your share of the property you are safeguarding his right to remain in the house until his death, preventing your children from forcing a sale of the property during this time.

When granting a life interest you should consider granting your trustees the power to sell the property and the power to purchase another property which your husband will have the right to live in. It may be that your husband would want a smaller property or to move closer to his children if you died and vice versa if you survived your husband.

There are also other advantages to leaving a life interest in your share of the property, as under the current legislation this arrangement would ring fence your share of the property should your husband ever have to pay care home fees.

The same can be said if he was to become bankrupt, as your husband would have no right to the capital fund, the trustee in bankruptcy could not take this into account. If your husband makes a will in the same terms as you the above advice will also apply to you.

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