Wills: Joint tenants/tenants in common - is it relevant here?

[AgentPidge]

DH and I made simple mirror wills 16 years ago - the house goes to each other, or 50/50 to our two DC if we die together. Two years later we moved house and paid off our mortgage.

Now I've been contacted by the firm who did the wills to say we need to update them because we now own a different house. But the wills say that I leave [old address], but if that doesn't form part of my estate at death, I give instead the property which I last owned and used as a principal residence.

When I said I would update the will but not at the moment as I'm busy in May, the woman said to check if we're joint tenants or tenants in common, as this would make an important difference, and we should be tenants in common. But looking online, I can't see the relevance of this to the wills. We're married. The only time I remember this coming up was when we took out the mortgage, donkeys' years ago, before we were married, and it was as tenants in common. I've got rid of all the old mortgage paperwork, and can only think of Land Registry for proof of the house ownership. Am I missing something?

Land registry lists us both as 'Proprietor' of our property. Nothing about joint tenants/in common.

Many thanks if you've read this far!

If you are joint tenants, your husband will automatically inherit the house when you die. It will not form part of your estate, so anything you say in your will about it would have no effect. If your husband then remarried, that would invalidate his will so, unless he made a new will, everything would go to his new wife when he died and your children would get nothing.

If you are tenants in common, you will each own 50% of the house (although you can change this to a different split if you want). Your share of the house will form part of your estate and will be dealt with according to your will. You can leave your husband a life interest in your share of the house with it passing to your children when he dies. That guarantees that he can continue living there (and will also allow him to downsize or move elsewhere if he wishes), and also guarantees that your children will ultimately inherit.

You won't find the words "tenants in common" at the Land Registry. If you own your property as tenants in common, there will be a Form A restriction on the register saying, “No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”

@prh47bridge Thank you for your comprehensive reply. That's very helpful.

It sounds to me like the Will writer is just trying to drum up some business with no justification. If, as you say, the Will covers whatever house you're living in at the date of death then there's no need at all to update your Will.

However, you definitely need to discover whether you're joint tenants or tenants in common. If you didn't tell your solicitor when you bought your current house that you wanted to own as TIC the default position is that you would own it as JT's.

If you find out you are JT's then it's very easy to change it to TIC by serving a `notice of severance'. You don't need a solicitor to deal with it.

Thanks. How do I find out? (Sorry if this is a daft question . I have brain fog!) I've looked at our paperwork from the Land Registry but there doesn't seem to be a Form A restriction.

If there is no Form A restriction, you own the house as joint tenants. Your current will is unlikely to be appropriate if you sever the joint tenancy, so I would recommend getting professional advice.

OK. Thank you.

Solicitors after making work