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Joint tenants vs tenants in common: How this can impact your estate

Wills & Probate

There is no doubt that preparing a will is a vital step in your estate planning. However, there are many other important factors to consider. Did you know that not all of your assets can be dealt with by your Will?

Before you can decide who should benefit from your estate, you need to have a clear picture of what you own and how you own it.  You might know that you own your home jointly with your spouse, but how you own it could have a significant impact on your estate when you die. This needs to be considered so you can be sure that there are no unintended consequences.

Joint tenantsJointly owned assets can be held either as joint tenants or as tenants in common. If an asset is held as joint tenants, the surviving joint tenant will automatically acquire ownership of your share of the asset on your death. This is known as the “right of survivorship”. It’s important to note that this asset will therefore not form part of your estate and will not be dealt with by the terms of your Will. Your home might be your only major asset and provisions in your Will could fail if there aren’t sufficient funds from your other assets to distribute to your beneficiaries.

There are benefits to owning your home as joint tenants if it is clear that you want your joint tenant to inherit the house when you die, which is a common scenario for spouses. The process of arranging for the surviving spouse to become the sole owner of the property could happen quickly and easily without the need for a grant of probate.

However, the risks of holding a property as joint tenants can be particularly apparent in a blended family situation. Consider this scenario – you might intend to provide for your children from your first marriage by leaving them a proportion of your estate in your Will. If you own your home as a joint tenant with your new spouse, your Will won’t affect how your share of the home is dealt with on your death. Your home would simply pass automatically to your new spouse when you die and your children could be left with nothing if your home was your only significant asset.

Tenants in Common – When you hold property as tenants in common with someone, you each own a percentage of the property, rather than holding it jointly. On your death, your share of the property will form part of your estate and be dealt with in accordance with your Will and it will not pass automatically to the other tenant in common.

Again, the result of this could be complicated in a blended family situation. Your spouse could end up holding the property as tenant in common with your children from a previous relationship as the beneficiaries in your will. If everyone doesn’t agree to keep the property, it might become necessary to sell it, leaving your spouse without a home to live in.

It is clear that proper estate planning involves much more than simply preparing a Will. As part of our Estate Planning services, we can order a title search to check whether you own your property and joint tenant or tenants in common. We are happy to discuss the implications with you and guide you through the steps required to make any necessary changes.  Please contact our estate planning team to discuss your personal circumstances.