Typically couples own their home as joint tenants. This means that both own the whole property. With tenants in common, each owns a set share - this can either be half each, or a defined percentage. If a client owns their home as joint tenants, and if one client dies, the other automatically becomes the sole owner of the property. With tenants in common one member of a couple can pass on their share of the home on death, say to their children, while the other member can continue to live there, passing on their half on death to whomever they wish.
What is the difference compared to a joint tenancy?
As joint tenants:
Both have equal rights to the whole property
The property automatically goes to the other party If one dies
The clients can’t pass on their ownership of the property in their will
Advantages of a joint tenancy
The advantages of a joint tenancy are the potential avoidance of probate because the property automatically passes to the survivor. The survivor may not need to go to probate; all they would have to do is show a death certificate in order to have control of the property. There are inheritance tax and estate planning advantages of being able to control where your ownership of the property goes rather than it simply passing to the survivors.
Disadvantages of a joint tenancy
If one of the owners has a debt, a creditor of that owner may force a sale of the whole property. Placing property in joint tenancy may disinherit children or others since property held in joint tenancy passes to the survivor no matter what the deceased joint tenant’s will directs and no matter who the deceased’s heirs are under state law.
Tenants in common
Clients can own different shares of the property
The property doesn’t automatically go to the other owner if one client die
Clients can pass on their share of the property in their Will
Advantages of a tenants in common
A client can leave their share of the property to a loved one while the other owner can remain living in the property. If one of the owners requires residential long-term care, a percentage of the property can be protected from being taken by the local authority to fund that care. Tenants in common allows couples who are not married or in a civil partnership to use a discretionary trust and therefore reduce the amount of inheritance tax which might otherwise be payable. Tenants in Common There can be an inheritance tax saving on second death if a client passes away owning only 50% of the home rather than 100%. HMRC assesses inheritance tax on the market value of an asset and recognises that the market value of 50% of a property is less than 50% of the market value if a client owned an entire property This can be as much as a 10% saving of the value of the property from the inheritance tax calculation.
Disadvantages of a tenants in common
Tenants in common is a more complex arrangement and some people may prefer the simplicity and efficiency of the home passing by survivorship. In some cases where the first partner needs to go into long-term care, tenants in common can produce unwanted disadvantages. The second partner living in the home may become stuck in a position that if they wanted to move, the local authority would take the proportion of the property owned by the person in care - effectively preventing the second person from ever moving home after the first has gone into care.
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