Joint Tenants or Tenants in Common?
You should be aware that the scenarios described in this article notes do not cover all possible issues relating to your Will and you should seek our specific advice in relation to your particular circumstances.
If you are purchasing or taking property jointly with others, or contributing to the purchase price of the property, (whether or not you are related to the other Purchaser or Purchasers), you must consider what share(s) each joint owner will take in the property so that your interest is safeguarded.
It is very important that your intentions are reflected in the Conveyance or Transfer. The absence of a clear express declaration of the share or interest that you are taking in the property may cause problems in the future and can lead to expensive litigation in certain circumstances, e.g on the death or bankruptcy of one of the joint owners, or if the parties fall out.
It is not possible to give anything other than general advice in this note and therefore you should always seek specific legal advice. In general terms, however, the following applies:-
- If the parties purchasing or taking the property are expressed to hold the property as “joint tenants” then on the death of one of them his or her interest in the property will automatically pass to the survivor (or survivors) regardless of any provisions in the deceased’s person’s Will. A joint tenancy can, however, be brought to an end by what is known as “severance” to create a tenancy in common (see (b) below) and a number of other factors, eg death or bankruptcy can alter the position of the parties.
- If the parties purchasing are expressed to hold as “tenants in common” then each party will own a particular share of the property. The Conveyance, Transfer, or other document should state what the respective shares are (e.g. equal shares or one-third to one party and two-thirds to the other), and apart from very exceptional circumstances such declaration will be binding. If the shares are not specified in the Conveyance, etc, arguments can arise as to how much each party owns, resulting occasionally in costly court proceedings. In the case of tenancies in common, each party can dispose of his or her particular share in the property without the consent of the others, and on death that share will pass according to the terms of his or her Will, if there is one, or following the rules of intestacy if there is not. The share will not automatically pass to the other party or parties.
If you decide to hold the property as tenants in common you should make a Will and if you have already made one you should review it to see if it requires alteration in the light of this acquisition. We can assist you to do this.
In certain circumstances it is possible that what has been agreed between joint Purchasers and expressed in the Conveyance, Transfer or other document, may be varied by the Court (e.g. upon divorce or death).
There used to be Inheritance Tax planning reasons why residential properties were held as tenants in common; this position was altered on 9th October 2007. If the property is not a principal private residence adverse capital gains tax consequences can accrue and so tenancy in common ownership for investment property will be recommended. If this is a potential issue for you we can provide specialist advice.
There can be long term care reasons why you may wish to hold your property as tenants in common. The cost of long term care can strip much of your estate if you end up in long term care. Ownership as a tenant in common will give more flexibility to either spouse to transfer their half or other share directly to children before or on death perhaps protecting that half share from being sold to cover the long term care costs of the surviving spouse. However as there can be negative capital gains tax implications of so doing if this is a potential issue for you we can provide specialist advice.
If, after reading this, you are in any doubt, please seek our advice, otherwise please confirm your instruction to us in relation to the preferred form of ownership.
The information contained in this article is relevant to the date upon which it is distributed; advice given verbally by Wilson Nesbitt is also only relevant to the day upon which it is given. Tax laws change every year and it is the individual responsibility of each Wilson Nesbitt client to ensure that their Will reflects the current legal and tax position. Wilson Nesbitt cannot and do not give any assurance whatsoever that the legal and tax position at the date of death of a client will be the same as at the date advices are given or Wills are executed.
Gilbert Nesbitt & Lenore Rice
Gilbert and Lenore are senior partners of Wilson Nesbitt, solicitors. Gilbert has been a solicitor since 1978 and a partner in the firm since 1982. Gilbert has been a member of the Society of Trusts and Estate Practitioners since shortly after it’s foundation in the 1990s.Lenore has been a solicitor since 2009, a partner in Wilson Nesbitt since 2012 and a member of the Society of Trusts and Estate Practitioners for the last ten years. They share responsibility for the tax, trust, wills and estate administration department of Wilson Nesbitt assisted by six specialists. Either Gilbert or Lenore are happy to have a phone or video call or meet clients face to face (behind Perspex screens) to discuss Inheritance Tax, complex Will planning or other matters in either our Belfast or Bangor offices.
POSTAL WILL OR ENDURING POWER OF ATTORNEY MAKING
We provide you with a free postal information pack on how to make your Wills and Enduring Powers of Attorney by completing and returning a questionnaire to us, receiving draft Wills and Enduring Powers of Attorney from us for you to review, using our phone helpline and then receiving you are ready to sign Will & Enduring Power of Attorney with instructions on how to sign the documents in accordance with the legal requirements.
Take the next step and call us on freephone number 0800 840 9293 or email Wills@Wilson-nesbitt.co.uk to request a free postal Wills & Enduring Powers of Attorney information pack on how you can use our postal service at little cost to make your Wills, make your Enduring Power of Attorney, gift transfer your property or arrange a phone or video call or face to face (behind Perspex screens) consultation with one of our solicitors on making your Will, Inheritance Tax planning, gifting or other tax planning matters.
See our other articles on Inheritance Tax, Making your Will or Enduring Power of Attorney:-
- Making a Will;
- Enduring Powers of Attorney;
- Inheritance Tax Personal Allowances & Exemptions;
- Inheritance Tax Residential Nil Rate Band;
- Inheritance Tax Seven Year Rule;
- Inheritance Tax & Deeds of Variation
- Inheritance Tax Business Property Relief;
- Inheritance Tax Trust & Trustees;
- Reduce Inheritance Tax by Charitable Giving;
- Standard Provisions of the Society of Trust & Estate Practitioners;