Do I need a 'right to reside' clause?

mummabear16

My husband and I are updating our will. It's fairly simple in that we want our house to go to the surviving spouse first and then to be split equally with our 2 adult children when we both pass. The advisor has recommended we include a 'right to reside' clause but I'm not sure whether this is necessary. Is this a common thing to do? I naturally want to protect both my children, but I don't want to pay for something which isn't needed.

MyRealNameToo

https://forums.moneysavingexpert.com/discussion/6668391/do-i-need-a-right-to-reside-clause

Are you joint tenants or tenants in common?

Are there concerns that the surviving spouse may remarry etc and either fail to make a will (marriage automatically stops prior wills) or make a will based on different terms?

Some will get the house put into tenants in common status and then pass their half directly to the kids but with a right of residency to the surviving spouse thus avoiding the above issue and potentially some protections on the house having to be sold to fund care costs if the surviving spouse gets to own 100% of the property in the interim.

Keep_pedalling

If you are relatively young and the surviving spouse has a reasonable chance of remarrying then it would protect your children in the event the surviving spouse made a will in favour of the new spouse or simply failed to make a new will at the time of marriage.

mummabear16

We're both in our 50's. We are currently joint tenants, and our legal advisor has advised that we should amend this so we become tenants in common, which she is going to arrange for us. She gave the example that if we both died, and there was a dispute between our two children, or if one of them needed long term care due to illness etc. it is advisable to pay for the additional 'right to reside' clause. I hadn't heard of this before and was wondering if this is the appropriate thing to do.

Yorkie1

Are you in England / Wales or another part of the UK?

Is your legal advisor a solicitor or a different professional?

If a solicitor, are they a member of STEP (Society of Trust and Estate Practitioners)?

Just asking because the terminology of a "right to reside" clause is not common.

RAS

Assuming England or Wales?

If you are tenants in common, you each own 50% of the house and can leave your portion to whoever you wish. If you are joint tenants you each own 100%.and when the first dies the survivor becomes the sole owner.

It is not uncommon for each spouse to leave their portion to the children whilst protecting the survivor's right to reside after the first death. This usually creates an Immediate Post Death Interest Trust, the details of which are written into the will.

I am concerned that you appear to be using an advisor not a lawyer with specialist knowledge of wills and probate. And do not appear to understand what your advisor is recommending which suggests that they have not adequately explained their recommendation.

If you really want the house to go to the children after death, you need someone who is qualified, not an advisor. A good IPDI trust protects half the value of the house for the children if the survivor has to go into care or remarries. And prevents problems for them with benefits, mortgages, second home regulations, and CGT. It also protects the survivor is any of the children divorce or become insolvent.

We've seen too many poorly drafted wills here that resulted in the inheritance being reduced because the will created unnecessary liabilities and others which made inadequate provision for the survivor.

Do not proceed with any will about which you do not fully understand the implications if you die first and if you are the survivor.