Will question

[Confused155]

Morning

I have read a few posts on this recently but would like some opinions. I am recently married and so our wills are now invalid. We are tenants in common so we need to know what our best option will be. Our solicitor suggested tenants in common until we got married so that is what we did. I don’t have much experience but I have listed what I think our 2 options are :

1. Don’t renew the wills and change the tenancy to joint owners. What are the ups and downs of this? Do I need to inform solicitor the wills are now invalid and can be cancelled/destroyed?

1. Renew the wills to cover us now we are married and remain as tenants in common. Is there any ups and downs to this.

Would we need to apply for probate in both situations? Is one option easier to sort an estate out than the other? We don’t have any children but because we have both been married before and have some family that we don’t see we would like to make sure there’s no room for disputes and no one can contest. Is there one option that would stop this from happening? All property and assets will be left to each other.

Thank you for your time.

Hi, not a lawyer here, but I'd advise making fresh wills if you want everything to be clear and simple. If you change the ownership of your property to joint tenants, then you won't need probate to transfer the ownership of the house to the surviving partner/spouse as this automatically transfers, but probate could still be required for the rest of the estate (if it is over the probate threshold) and having a will makes this a much simpler process particularly if there are family members who may intervene unhelpfully.

Yes intestacy rules where there are no surviving children mean a surviving spouse inherits everything and there should be little room for dispute unless you have any dependents (in England and Wales anyway) but I'd still say it's worth getting it down on paper anyway - you may not have many assets other than the house now, but you have the rest of your life to accrue things and even basic things like dealing with banks can be made simpler by having a will. My Dad died without a valid will and even though he had very little to pass on (well below probate threshold, in fact he was in net debt) and we managed to sort it, there were a few times when being able to produce a will would have been helpful, anything which reduces stress in the wake of a bereavement is good! You can also use your will to get any wishes down about funeral (burial vs cremation, religious vs not religious) as this can be a 'flash point' for conflict esp after a sudden death, any sentimental possessions or family heirlooms and also what you would want to happen in the (unlikely) event of you and DH passing away together e.g. in an accident, as if this happens and you are both intestate your families would inherit (check gov.uk for intestacy rules of order of 'preference', it goes something like spouse, children, grandchildren, parents, siblings, grandparents, aunts/uncles, cousins) - you might prefer the money to go to charity or a particular family member in that case...

Thank you for your response, it was very helpful.

So updating our wills and changing to joint tenants seems like the best option.

Hopefully some other people will come along with some help too

Being joint tenants makes it much quicker and easier after the death. I’d definitely do that. And I’d update your wills as well, just to make everything clear.

Remain tenants in common. This will prevent the local authority forcing the sale of the house if one of you became ill and needed residential care. They cannot take one half share of the house as it is effectively not a joint asset, but two separate assets. Speak to a solicitor as they can explain it better than me.

Make new mirror wills. They say the same thing, eg, DH/DW get to remain in the home for life, on death it is sold and his half goes to his side of the family, yours to your side (if this is what you wish) or the dogs trust/donkey sanctuary etc. Any savings goes to the other person and so on. It's the simplest way.

Definitely don't become joint tenants! There is no benefit whatsoever and definite disadvantages. The property is owned by both of you in equal parts regardless, but see above why tenants in common is useful. It also costs money to switch

@goldenharvest

Definitely don't become joint tenants! There is no benefit whatsoever and definite disadvantages. The property is owned by both of you in equal parts regardless, but see above why tenants in common is useful. It also costs money to switch

It's not true to saying there are no benefits to being joint tenants - not saying it's right for everyone in every circumstance but for instance if the property is owned as joint tenants there is no need to apply for probate to transfer ownership on the death of a joint tenant whereas if it's tenants in common and the estate including the property is over the threshold then you do.

Also, in the event of one partner dying with unsecured debt, being joint tenants protects the property for the surviving tenant/spouse - this can happen, my Dad died suddenly with quite a lot of credit card debt, overdrafts and unsecured loans - not absolutely huge amounts, had he lived he would have repaid them from her salary/earning, but it was certainly more than my Mum (his wife) could afford to pay. We were advised that had they owned their property as tenants in common the house would have had to be sold to satisfy his creditors, my Mum's 'half' would be safe and she'd receive the residue of his 'half' but the debts would have to be settled first - as it was they were joint tenants so all the debt was written off (well the bank took the £20 or so he had in his savings account but that was it). I certainly call that a benefit!

This may not be applicable to the OP right now (but then again nor may care home fees) but it's certainly not absolutely clear cut, there are pros and cons to both options and it is worth talking through with your solicitor!

Remain tenants in common. This will prevent the local authority forcing the sale of the house if one of you became ill and needed residential care

No, the local authority cannot force a sale in this situation. See Chief Adjudication Officer v Palfrey 1995. Mr Palfrey and his daughter owned a home as joint tenants. He went into care. The LA tried to force a sale. The courts ruled against the LA as the daughter was still living there. That remains the legal position.

The value of the home should be disregarded from the financial assessment by the LA if the home is still occupied by the spouse of the partner who has gone into care.

Definitely don't become joint tenants! There is no benefit whatsoever and definite disadvantages

Disagree. There are benefits and no obvious disadvantages. When one party dies the property automatically passes to the other and there is no need for probate. If they remain tenants in common the executor will need probate so that they can transfer the dead partner's share of the property to the surviving partner.

If there are no children from previous marriages, my view is that joint tenancy is the way to go. It is easy to sever a joint tenancy and turn it into tenants in common if there is ever a need to do so in future.

@prh47bridge

I stand corrected! But if in the case you mention, when the remaining owner dies, can the La then take all or part of the house sale to repay the LA nursing care fees? Or does the house pass onto the remaining family members/children etc? Or does the LA not get reimbursed?

And what if one spouse died but wanted to leave some assets (half the house) to their children, but wanted the widower to remain in the house until death, but he then remarried, and then died. Would that invalidate the wife's will? Would the last spouse standing inherit everything? After all she surely could contest any will and say making her homeless would not be fair?

But if in the case you mention, when the remaining owner dies, can the La then take all or part of the house sale to repay the LA nursing care fees?

At that stage yes, the LA may be able to force a sale to pay the fees. That would apply regardless of whether they are joint tenants or tenants in common as neither of them would be living there.

And what if one spouse died but wanted to leave some assets (half the house) to their children, but wanted the widower to remain in the house until death, but he then remarried, and then died. Would that invalidate the wife's will?

This is why I said that children from previous relationships would be a reason not to become joint tenants. If they are joint tenants the deceased cannot leave their share of the house to their children. However, if they become tenants in common the OP could leave him a life interest in her share of the house with it passing to her children when she died. That would allow him to continue living there and ensure that her children inherited. Any future marriage he entered into would not alter that. This is less of an issue if there are no children from previous relationships unless she thinks he might disinherit his own children.

@prh47bridge

At that stage yes, the LA may be able to force a sale to pay the fees. That would apply regardless of whether they are joint tenants or tenants in common as neither of them would be living there.

But if they were tenants in common surely the LA wouldn't be able to touch 50% of the house profit on sale, because that person did not incur the nursing home fees? Then that 50% could be given to the children and the other half to the LA?

But if they were tenants in common surely the LA wouldn't be able to touch 50% of the house profit on sale, because that person did not incur the nursing home fees?

The LA wouldn't be able to retrospectively reclaim fees. However, the survivor would probably be over the means test threshold so would have to pay their own fees and may have to sell the house in order to pay.

If the house is owned as joint tenants and the deceased leaves their share to the partner in the care home the situation would be exactly the same. However, if the deceased left their share to someone else, the partner in the care home would only have access to 50% of the value of the house following the sale so would at most be liable for that amount in care home fees. For that reason, it may be wise to sever the joint tenancy and update wills if one of the partners is likely to go into a care home. But. of course, the law may change in the interim so there is no way of predicting the correct course of action.