At Harper Macleod, we continually emphasise the importance of preparing a Will. While it is necessary to consider who your Executor(s) and beneficiaries might be, we look here at a few other practical points to consider too, particularly when your main asset is your home.
Do I need to think about my title deeds when leaving my house to someone in my Will?
It is often the case that when couples are in their second marriage and have children from their previous marriage, their priority is to benefit and protect both the spouse and the children. One way of doing so is to include provisions for Liferent Trusts. These trusts work by allowing a named beneficiary, known as the liferenter or liferentrix, to benefit from an asset such as a house during their lifetime. When the liferent ends, the trust property passes to other named beneficiaries.
For example, Mr Smith's Will includes a liferent of his interest in his house for his wife, Mrs Smith. Mr Smith states in his Will that the ultimate beneficiaries of the house are his children. Mr Smith dies and his interest in the house is held in the Liferent Trust for Mrs Smith to live in until she dies. When Mrs Smith dies the house is inherited by Mr Smith's children.
As a result of the Liferent Trust, Mrs Smith never becomes the owner of Mr Smith's share of the property despite being able to live there. You can see why this is particularly popular with couples who want to ensure that their spouse or partner has a place to live, but they do not want that spouse or partner to inherit the house, remarry and leave the house to a new spouse or partner which could see their children inheriting nothing.
Survivorship clauses - is the Liferent Trust always valid?
While including a Liferent Trust in a Will can be smart planning, it is important to remember that this will only be possible where title deeds allow for it. A property can be owned by two people and held in one of two ways – equally between them or equally between and to the survivor of them. The latter, known as a survivorship clause, means that when one owner dies, the survivor automatically inherits the whole property. If a Will includes a Liferent Trust of a property and the property titles include a survivorship clause, the property will pass to the surviving owner instead of the trust.
This applies for any wishes regarding a property. Gifting a share of a house in a Will to anyone other than the joint owner is only possible where the property title contains no survivorship clause.
Therefore, it is vital that you always consider your titles and have your Solicitor check these when including any kind of specific wishes in your Will regarding your property.
Get in touch
If you wish to put a Will in place or discuss what would happen to your house in your circumstances, please do not hesitate to get in touch with a member of our Private Client team and we will be more than happy to assist:
Elgin: 01343 542623
We have solicitors and offices across the country and are ready to help.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.