Tenants in common and whole life trust

Waterlilly12

Can anyone help please
my partner and I were tenants in common. He has passed away. His 50% share is left in whole life trust to my children. So I can reside in the house until I die. 

I want to downsize. 

can I use the 50% in trust , 25% of my share of house to buy new house .
does the remainder of money come to me. 

Could anyone explain to me if this is correct

Savvy_Sue

Sorry for your loss. I think it depends on what the will says, precisely. The 'gold standard' wording would allow you to downsize, but if you put up the actual wording (anonymised) someone may be able to advise you better.

Waterlilly12

This is what the will reads
whilst the said person ( me) remains alive and desires to remain in the property and keep the same in good repair. My trustees shall not make any objections to the residency. Shall not disturb or restrict in any way or enforce the trust for sale or whilst the property is held or to realise my share therein as to obtain rent or profits from the property.
if at anytime (me) should so request in writing the trustees shall sell the property, and shall apply the whole or any part of the property fund in the purchase of another property and shall hold the same upon trusts contained in this Claus 

sorry for long reading 

lisyloo

"if at anytime (me) should so request in writing the trustees shall sell the property, and shall apply the whole or any part of the property fund in the purchase of another property and shall hold the same upon trusts contained in this Claus "

This says the 50% can transfer to another property.
You'd transfer 25% and keep the other 25%.

When you die then the new property would be split in the ratio 50:25.

Waterlilly12

Thank you for your comment. 

I understood this to be the case. 

My solicitor told me the money left over would be held in trust.  But it would be my share of the money. 

Thank you 

lisyloo

Ah right, do you have a "mirror" will?

Waterlilly12

No we didn’t have mirror wills. 

lisyloo

By "my share of the money" do you mean your 50% of the property, or what you inherit from your partner?
You'd only inherit cash if the new property is less than 50% of the value of the old one.

Waterlilly12

Hi lisyloo 
I meant if I use the whole of the 50% from life trust. And use 25% of my share of 50% of the house. Which I own.  To down size, does the 25% come to me in cash. 

lisyloo

I would have expected your solicitor with full view of the will to have better information than me.
However your share of the house is yours.
The will can only cover your partner's share. A will can't cover someone else's assets.
Therefore YOUR cash/property is entirely yours, so I don't understand why the solicitor is saying your money would be held in trust. Your money cannot be a governed by your partner's will.

poppystar

We were given a choice by the solicitor in the event of downsizing. Any excess money from the sale over the purchase could be split between the trust and the person with the life interest or the excess cash could be realised by the person with the life interest and the percentage the trust would own of the new property would increase. In your example the trust would have to have a 67% share in the new property if you were to take the cash. 

This was a while ago before trusts were registered and I wonder if there is less flexibility now these life interest trusts have to be registered. It would certainly be more complex but I have no experience and have seen nothing on here where someone has downsized in these circumstances. Will be interesting to find out.