Any experience or knowledge of right to occupy clause in a will?

[Kdowbe]

I will be taking legal advice on this but am still interested in people's experiences or knowledge with right to occupy clause in a will.
Basic scenario is I have adult children and I live with my partner, in my house, we are not married and don't intend to marry. I own my house outright. We have been together for four years and living together for one year.
I want to sort my will. My wish is that in the event of my passing, there is a right to occupy clause that allows him to remain living in the house for a defined period eg two years. He is happy with that potential clause. The clause would have the usual caveats ie he must maintain and insure the house, can't sub let it, and is void if he marries or moves out etc.
On selling the house the bulk of the money would go to my children and he would get a percentage. He's never needed to invest in this house financially and has lived here rent free although contributes to all bills etc.
I have been told by one solicitor that having trustees is not necessary.
Has anyone had any experience of this kind of situation?

Surely the executors of your will will enforce this ? I have this and no trustees.

An aunt of mine did this but with a slight difference. The other side.
She married a widower (she was widowed too) in their early 50s.

She sold her house (it may have still had a mortgage on it so her equity may have been small) and moved in with him into the house he'd owned with his late wife.

He had two adult children, not at home (she had 2 adult children too, married.)

His will was that in the event of his death, she was allowed to stay in the house until either she died or moved into a care home. At that point, the house would be sold and the proceeds go to his children.

He did die first by about 5 years. She lived in the house for a while then lived into a care home for about 3 years (funded partly by his pension and savings.)

On her death the house was sold- as above.

I wonder why you have put a 2-year limit on your partner and where will he lve thereafter? Does he have a home of his own?

You don't need trustees as what you want is not putting your estate in trust.

I have heard its very difficult to get somebody out of a house that has been their home. Usually it's the right to occupy for the remainder of their life then it can
be sold.

That's right.

And where would he live?

Does he have a few hundred thousand in savings to buy a home? Does he own a home and currently rent it out?

Is he aware of your Will and agreeing to it?

To answer a couple of questions, yes he is aware of my wishes for the will and is in agreement with them. We discussed this before he even moved in. He has no wish to remain in my house for the rest of his life, he has a property which is currently let out. A two year period is likely enough to allow him to move back into his own property.

I am a qualified practioner. You can include the right to reside in your Will, giving your partner the right to occupy. The Will realistically should not give the property direct to the children for many reasons. You may also need to consider how long your partner may occupy the property for. It is important that your circumstances are discussed fully, prior to drafting your Will.

Are you a solicitor?

I don't see why she can't say in her will that her children are going to inherit her assets.

I did not say that, I stated about gifting the house direct to children on her death, with her partner residing in the property, the house would be in trust for them to safeguard the partner and children

I am a fully qualified chartered paralegal in estate planning

A friend of mine did this. They weren't married and had lived together for many years. It was her house though and he hadn't contributed towards the purchase. Her will gave him a right to occupy for a 12 month period and he left on time. Like your DP though, he had another property to move to.

We’ve had this twice on MIL’s side (she was one of 15 so have encountered many things with them 😂) - once it worked very well, once it became a nightmare.

With her sister and her partner it worked exactly as planned. Her partner had three years right to occupy. His tenants were looking to buy so timing wise it worked out perfectly and he moved out after 2.5 years.

However, after MIL’s brother died the same clause caused a nightmare. His partner became very unwell after his death and so was unable to even look for somewhere else to live for a year. Then she struggled to find somewhere - she had a good amount saved from the sale of her own place 10 years previously, but house prices had increased so much she struggled. When the will was drawn up she was fit enough to live in a flat or house with stairs, but by the time it came round she needed no stairs at all. In the end her step-children nearly had to evict her, that was the recommendation from the council. In the end her son ended up taking a mortgage to combine with her savings to buy her somewhere. The fall out cost him his relationship with his girlfriend (who was fuming they wouldn’t be able to get a mortgage in future) and also with his step-siblings, as they’d previously considered each other, as it all got so messy.

Is a 'right to occupy' set up differently to 'a life interest' in a property? Again, will be seeking the advice of a solicitor, but just wanted to understand the difference..

That's what I said.

"I have been told by one solicitor that having trustees is not necessary."

There is a body called the Society of Trust and Estate Practitioners (STEP). They have solicitors who are very experienced and knowledgeable in this area. If you search something like "STEP solicitor [name of your town]" then you should get a list of solicitors who have been accepted as full STEP members.

I would really recommend that you speak with a suitably qualified solicitor.

Yes, you certainly can leave your house directly to your children. You can leave your house directly to them and, since your children are over 18, they will own the house once probate has been completed and the executors have filled in the paperwork with HM Land Registry.

Once that is done, your children can immediately apply for a court order to sell the house and turn your DP out of the house. Tough luck on him, he doesn't get any say in the matter.

In contrast, if you leave your house in trust to your children when you die (it is often referred to as an 'immediate post death interest trust') then you can stipulate these conditions, eg that your DP is allowed to remain in the property for X number of years.

You mention that you want your DP to have a certain share of the property. Again, a solicitor will advise you on this. So you leave eg 90% in trust to your children and 10% to your DP. That way, when the house is sold your DP gets his 10%.

If you absolutely want to ensure that your DP stays in the house for the defined period, eg two years, then you need to leave the house in trust to your children and give your DP the right to live there. Otherwise your children could turn him out of the house quite quickly indeed.

It is quite common for the executors to also be the trustees.

Can you explain your point about not giving it to children? In one post you talk about giving and in another you talk about gifting . Can you clarify?

"I don't see why she can't say in her will that her children are going to inherit her assets."

She certainly can say that her children will inherit the house directly on her death.

The issue is that this allows the children to apply to the court for an order kicking her widower DP out of the house.

If the house is left in trust then that ensures that the DP cannot be kicked out of the house until the end of the period mentioned in the will.

Please see my comment two minutes before yours to explain the reason why.

I think the problem is.

What's ok when someone is in their 40's or 50's

Isn't the same as when someone is in their 80's or 90's.

If you died when he is 89. Would ypu expect a 91 year old to move out with all that entails especially if he is in poor health?

Sorry I don't understand this comment. I would be leaving the house to the children, of course. Who else would I be leaving the house to? Not meaning to be snippy, just don't really understand what you mean.
Also I was told that the house can be left to the children with a right to occupy order, and a trust is not needed. Is that not the case?

It's possible I might reassess the will as we got older. It's quite common for wills to be updated as people age and relationships develop.

Thank you

If you gift your share of house to chidren on first death, and 1) the children do not reside on it, it creates a CGT liability, 2) if either of the children are married and are going through a divorce, the property forms part of their estate, 3) if any of the children have financial issues, it could potentially mean the house may have to be sold to settle the debt, dependant upon the financial status of the others., 4) if any of them are disabled or on benefits etc., they could potentially lose their benefits, A properly drafted Will with the correct trusts in place not only protects the house for the surviving spouse but for the children.
This is why correct advice based individual circumstances is obtsined. Many people will say 'thats not going to happen', but it does.

Any Will should appoint executors / trustees. Trustess are always required if in particular there are specific trusts within the Will that needs setting up.

I am not saying not to leave the house to the children. You leave it to them via a correctly drafted trust Will to protect the person remaining in the property and also for the children outined in my earlier post responding to similar question.

Thank you, these are helpful and important points.
I assume trustees can be trusted friends?
What happens if the trustees die during the time when the trust is in place?
What happens if I can't find trustees? Is it potentially onerous being a trustee?