What is a joint tenant?

A joint tenant is an individual who jointly owns a property or estate with one of more other parties.

If one joint tenant dies, the other tenant is automatically entitled to the entire property, irrespective of the terms of the deceased person’s Will.

What is a Tenant in Common?

Tenants in common each own a distinct share of the property, and can bequeath their share to someone else in their Will. They are presumed to have equal shares, unless there is evidence to the contrary. Tenants in common can choose to have unequal shares, for example to reflect the amount each contributed to the purchase price.  Many couples that own a property opt when writing their Will to change their status from Joint Tenants to Tenants in Common.  This allows them to bequeath their half of the property to anyone they wish.

So if we’re tenants in common and I have the greater share, how can I protect my interest?

You need to ask a lawyer to draw up a legally enforceable document, called a Declaration of Trust, recording your respective shares and also how any increase or decrease in the value of the property is to be apportioned. Without this, you are presumed to own the property in equal shares. In some cases, you can challenge this presumption in court but it is a difficult, expensive process with no guarantee of success.

If our relationship breaks down, is my interest in the property protected?

It depends on your circumstances, including whether you are married/in a civil partnership or cohabiting. If there is, unfortunately, no future for your relationship, and if you own a property as joint tenants, it is usually advisable to switch straight away to tenants in common. All you need to do is give your former partner notice in writing that you are severing the joint tenancy. There’s no requirement for them to agree, or even acknowledge the notice. You will then own a distinct half share of the property (subject to mortgage, if any). If you died, your half share would pass under your Will or the intestacy rules (if you had no Will). It would not automatically go to your former partner. This gives you some protection in the interval between the relationship breaking down and you entering a separation agreement or finalising your divorce/dissolution of civil partnership.

In the longer term, do I get to keep my share in the property (or its sale proceeds)?
If one of you applies for a financial settlement in the context of divorce/dissolution of civil partnership proceedings, potentially all of your assets are put into the “pot” to be divided between you. The court has a number of options for dealing with properties, including the family home e.g. transfer it into the name of one party; sell it now and divide the proceeds as the court sees fit; allow one party to live in it e.g. as a family home for them and the children until the youngest finishes school, then sell it and divide the proceeds between you. The outcome depends on all the circumstances of your case, including which other assets and how much income each of you has.

If you are not married or in a civil partnership, it depends on whether you and your former partner entered into a Cohabitation Agreement, recording what happens if your relationship breaks down and what each of you is entitled to. This should include provision for any properties you own. If there is no Cohabitation Agreement, in the eyes of the law neither of you has any financial obligation towards the other. One of you can buy the other out (subject to your mortgage company’s consent), or the property can be sold and the net sale proceeds divided between you. Unless you have a Declaration of Trust stating otherwise, it will be presumed that each of you is entitled to half.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Friends and family often take on the role of executor of a Will. This means they’re the people/persons who administer the Will. While the role can be very rewarding, it can also be a very stressful experience if conflicts occur.

The first thing to address is what exactly is a beneficiary? When we’re talking about Wills, a beneficiary is a person or legal entity (such as a charity), who has been named to inherit something. This could be money or other benefits such as land or property.

Common issues beneficiaries face

A beneficiary may be unhappy with the way the executor has been administering the Will, they could experience conflict with another beneficiary or they may feel they’re entitled to more than what has been left to them.

Other issues a beneficiary may encounter include:

• Delays obtaining a Grant of Probate by the Executors
• Delays administering the estate once probate has been obtained
• Lack of information from the executor or a failure to disclose accounts
• An executor abusing their position. They may for example be dishonest about funds from the estate or try to buy property from the deceased person’s estate for themselves

What to do when there’s a dispute between beneficiaries

What should you do if you’re a beneficiary and there are disagreements over the execution of a Will?

Understand your legal rights

As a beneficiary, you only have legal rights over your share of the inheritance once the estate has been distributed. You do however have a right to information before then which means you can be kept up to date with the administration of the estate.

If you’re worried an executor isn’t being as open as they should be, a solicitor can help you make a request to see the accounts. Additionally, if you feel an estate is being mismanaged, you have the right to take legal action against the executor.

Do you have grounds for contesting the Will?

In the UK, there are a number of grounds in which a Will can be contested.

• Lack of testamentary capacity (the person who made the Will did not have the relevant mental capacity to understand their actions)
• Undue influence or coercion took place
• Lack of knowledge or approval. If a Will has been executed under suspicious circumstances, for example you suspect the person was threatened with physical violence or subjected to verbal bullying, the court must be satisfied that the person making the Will understood and approved the contents of their Will.
• It has not been completed correctly under the Wills Act 1837
• Forgery or fraud has occurred

Appoint a solicitor

In situations like this, it’s always advisable to seek legal advice early on. Inheritance law can be complicated and the last thing you want is to end up in a messy court battle. As well as being incredibly stressful during what is already an upsetting time, you could be left with a hefty legal bill with little to show for it.

Your solicitor will be able to advise you on the best course of action which could include:

• Requesting a full inventory of the estate
• Requesting a full inventory of the accounts
• Applying to remove an executor and replace them with someone more suitable
• Applying for the estate to be restored if the executor’s actions have caused it to lose value
• Making a claim against the executor for breach of their duties

If you’re a beneficiary and would like further advice about contesting a Will, please use the form provided to get in touch with us.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.