Will Problems

doodling

Hi,

If the house is jointly owned then he can leave his share of the house however he wishes, he does not need his wife's permission to do so.

if the house is owned as Joint Tenants then he needs to sever the joint tenancy to do that, but he can do that without his wife's permission (but he is required to let her know he has done so).

If you are not passing your half onto your spouse (e.g. you are passing it to children) then it is usual to give your spouse a life interest in your half of the house to prevent the people you have bequeathed it to throwing them out of it (achieved by a trust created by the will).

poppystar

DrDeejUK said:

RAS said:

If it was a joint tenancy, then your step-father can sever the tenancy  (make it tenants in common) unilaterally, but he has to inform your mother.

If he hasn't severed the tenancy, then even if he leaves half the house to the children, it makes no difference because he doesn't have half to leave. We've seen that happen here before.

So, let me get this right. If my mother doesn't agree to sign her half of the house back to him then whatever provisions and trusts he has set up in his new will are meaningless. Is that correct?

No she doesn’t have to agree to the severance of the tenancy, she just has to be informed. 

Linton

DrDeejUK said:

RAS said:

If it was a joint tenancy, then your step-father can sever the tenancy  (make it tenants in common) unilaterally, but he has to inform your mother.

If he hasn't severed the tenancy, then even if he leaves half the house to the children, it makes no difference because he doesn't have half to leave. We've seen that happen here before.

So, let me get this right. If my mother doesn't agree to sign her half of the house back to him then whatever provisions and trusts he has set up in his new will are meaningless. Is that correct?

You seem confused...

After the joint tenancy is severed Mum and step father would normally own half the house each.  Step father's will can only specify what happens to his half of the house.  Mum's agreement is not required.  Mum's will specifies what happens to her half.

If the joint tenancy is not severed step father's will cannot specify anything about what happens to the house

Marcon

DrDeejUK said:

Flugelhorn said:

DrDeejUK said:

Flugelhorn said:

If your mother survives him then you read no further than (2a) ie she gets all the property and is executrix. The other factors only come into play if your mother had predeceased him

Have you checked how they own the property ? is it joint or tenants in common?

You are probably right but I've been told if my mother dies after him then I get everything and the other siblings get nothing. That doesn't sound right to me. As far as current ownership goes the property is in joint names (my step-dad and my mother).

what happens if your mother dies after step dad totally depends on her will not his  - if she has inherited everything then she can leave it to whoever she likes. or if she doesn't make a will it goes to her next husband or children according to intestacy 

Well, from what I understand now the house is being put into a trust for the children so I'm not sure how that changes things.

Without knowing two things (the exact wording of his new will, and how the property is owned), speculation isn't going to help you, I'm afraid.

RAS

DrDeejUK said:

RAS said:

If it was a joint tenancy, then your step-father can sever the tenancy  (make it tenants in common) unilaterally, but he has to inform your mother.

If he hasn't severed the tenancy, then even if he leaves half the house to the children, it makes no difference because he doesn't have half to leave. We've seen that happen here before.

So, let me get this right. If my mother doesn't agree to sign her half of the house back to him then whatever provisions and trusts he has set up in his new will are meaningless. Is that correct?

No. Your mother isn't signing her half back to him.

In England and Wales, there are two ways to own a house jointly. You need to know which. Costs £3 to find out from the Land Registry.

A joint tenancy means that both parties own 100% of the property and when one dies, the survivor still owns 100%. You can't leave 0% of a house to anyone although there have been at least a couple of attempts to do so reported on MSE that I know of.

Tenants in common means both parties own an agreed portion of the house and can leave that to whoever they wish. That can cause problems if it's left to anyone other than the other owner. The new joint owner(s) might want to sell, and could do eventually, leaving the survivor in difficulties. By putting it in life interest trust, for the use of the survivor, it protects the survivor because the trust own the other half, and protects the future beneficiaries from complications re CGT, benefits, First time buyer status and second home charges.

If someone is in joint tenancy, they can sever the tenancy without the other owners consent, but they need to tell the other owner. The assumed portions are 50:50.

From a practical point of view it also prevents the survivor making, or marrying and failing to make, a new will, which could exclude any of the original beneficiaries of the first deceased getting anything when the survivor dies.