Survivorship clause property purchase

[Catsandcheese]

Hi everyone, we are buying a property in Scotland.
The property will be in both my husband and my names, and we have been asked whether we want no survivorship or survivorship destinations.
We are formalising our own wills next week, which will be to leave everything to each other and to go to our children after both our deaths. Although we are Scottish we have not lived there for a long time. Does anybody have any advice as to the best response to the survivorship clause?
Thank you in advance

Not heard of that per se but we've recently re-done our wills (properly this time and not DIY ) and we have a "survivorship clause"

"If my husband the said xxxx not survive me for 30^ days, but in such event only, I direct my executors to make over the residue of m yestate to such of my son yyyy^, residing at...."

Like you, we're leaving everything to each other but then to ds.

We've also included a "common calamity" clause whereby if all of us have died, our respective estates go to SIL.

Plus we have double "failing which" executor clauses: each other, failing which SIL, failing which my best friend's dh.

A couple of reasons for this: my dad had a family friend as well as the lawyers as executors. Unfortunately, she died a few months before him, so it has just been the lawyers acting as executors, which has caused problems (issues between sibling and me, not dealt either well by the lawyers ) and also, should a "common calamity" occur to dh, ds and me, I don't want a single penny going to my then next-of-kin, who would be my sibling Dh also has a similar issue with one of his other siblings.

Survivorship just means your home goes to the survivor when one of you passes.
It can be included in wills, but your solicitor will ask if you have survivorship on your home.

Thank you @prettybird
That's very interesting. . We also have issues with one of my siblings and one of my husband's so they're getting nowhere near anything 😂. It sounds like your plans are water tight, I may have to think about ours too. Sorry about your dad.

We have not done wills so far which is terrible as our kids are now adults, but they are in the pipeline as I said. I'd just not heard of this when buying our house in England.

@WheresFluffy Thank you. Sounds like destination is a good idea then as it transfers directly to the survivor should something happen to one of us.

Thank you both for helping me 😀

We have that clause in our deeds - it means the house isn't part of the estate so the value isn't counted. This can save money as you don't need to get a change of deeds if one joint owner dies. Our solicitor recommended it as a much easier way of dealing with matters after death.

If the house passes to your spouse or civil partner in terms of your Will there is no IHT payable
Survivorship destinations have down sides ,particularly re IHT planning and care home fees
They are probably seen as a bit old fashioned now
But discuss with your solicitor,they should be discussing the pros and cons with you

Check with your Scottish lawyer. My understanding is that in a Will you can determine who inherits your house (heritable property) separately to who inherits the rest of your estate (moveable property). So you could leave all of your moveable property to your children and your house to the Cat and Dog home.

If you include a survivorship clause in the house ownership then your Will does not have the ability to change this.

Two people, who are distantly related to me, tried to move one surviving parent out after the other had died but they did not succeed as there was a survivorship clause in the house ownership. The Will of the deceased parent had left them half of the estate and these delightful people tried to get half of the house too.

So I think it is something to consider very seriously.

Thank you very much, I think based on what you are all saying I will ask the will making lawyer for some more information, we are seeing her this week.
The conveyancing lawyer wants an answer, but maybe they don't really know enough to advise.

The most common survivorship destination will say "john smith and jane smith equally between them and survivor" it means that the property is owned jointly and when one owner dies it is automatically owned by the other. There is no further conveyancing required to transfer other than the death certificate. This can cause issues for blended families.
The other option is to own the property just equally and then if the whole property has to transfer to the other owner on the death there would be further conveyancing required and fees etc. If you are including the property in your will to children and you don't want your share to go to DH this is the way to go.

Thank you @Willowback
We are not a blended family, so that's not an issue. I guess we are coming from the position if one of us were to remarry after the other died, neither of us want that third party to disinherit our children, but I believe that is not possible in Scots law either.

Children are only entitled ("legal rights") to a share of the "moveable" estate under Scottish Law - not the house.

Iirc, if the spouse is still alive, children are entitled to one third of the moveable estate (ie cash and contents), split equally amongst them - although they can waive that right. The surviving spouse also has legal rights to one third of the moveable estate. If both parents are dead, then the children are entitled to 50% of the moveable estate.

This overrides anything the will might say.

The house is separate to legal rights - so you do need to consider it in any will.

Does anyone here have a property protection trust in their will? I tried to start a thread but no one answered, I'm sorry to ask on your thread op.

Actually I'm not sure what a Survivorship clause is

@prettybird, interesting, I didn't know that about moveable estate and property being separate.

@ssd It's not problem at all, happy to help if you can get some advice here. I don't know anything of any use at all though, I am sad to say. I think some of the other posters have explained about survivorship - this only applies to Scotland.