Succession query

NoQuarter

Hi all,

I was looking at the new 2010 Co-Habitants Act and it got me thinking about a common enough situation in which we probably all know someone in or who has been in.

Lets say a couple own their house. The couple has 2 kids and the eldest moves out, marries and has their own house and life etc.

The younger child stays in the house and the parents die. The younger child is either a co-habitant(with boyfriend/girlfriend) for the purposes of the 2010 Act or maybe even married so the 1976 Act would apply.

What rights does the eldest child have in relation to the house and what effect does the boyfriend/girlfriend/spouse have over the house too in relation to the eldest childs share.

If you were drafting a will, what is the best way to make provision for your 2 children, knowing that the eldest(doesnt have to actually be the eldest of course) is out of the house and is financially stable and the other child will probably end up living in the house and moving in the other half.

Could it be the case that if the youngest and their spouse/other half were living in the house and the relationship broke up or the youngest child died, the house would transfer to her spouse/other half and the eldest child of the original parents would get nothing??

Naturally any thoughts will have to be split into married couples and just co-habitants but it is the latter I am particularly interested in.

Thanks for all thoughts.

blueythebear

NoQuarter wrote: »

Hi all,

I was looking at the new 2010 Co-Habitants Act and it got me thinking about a common enough situation in which we probably all know someone in or who has been in.

Lets say a couple own their house. The couple has 2 kids and the eldest moves out, marries and has their own house and life etc.

The younger child stays in the house and the parents die. The younger child is either a co-habitant(with boyfriend/girlfriend) for the purposes of the 2010 Act or maybe even married so the 1976 Act would apply.

What rights does the eldest child have in relation to the house and what effect does the boyfriend/girlfriend/spouse have over the house too in relation to the eldest childs share.

If you were drafting a will, what is the best way to make provision for your 2 children, knowing that the eldest(doesnt have to actually be the eldest of course) is out of the house and is financially stable and the other child will probably end up living in the house and moving in the other half.

Could it be the case that if the youngest and their spouse/other half were living in the house and the relationship broke up or the youngest child died, the house would transfer to her spouse/other half and the eldest child of the original parents would get nothing??

Naturally any thoughts will have to be split into married couples and just co-habitants but it is the latter I am particularly interested in.

Thanks for all thoughts.

The protections in the Family Home Protection Act 1976 and the Civil Partnership and ...Cohabitants Act 2010 prevent the transfer of an interest without consent of the non-owning spouse/partner. Presuming both children inherit equal shares of the family home by will or intestacy, then the non-owning partner/spouse could only prevent the transfer of the property.

If the younger child dies, the non-owning spouse then could inherit only the half that belongs to their spouse/partner. Ownership of the house would still be in two shares, the older child and whoever inherits when the younger child dies.

Despite the odd nature of the ownership in this case, the home would still be a Family Home within the meaning of the 1976 Act and the equivalent in the 2010 Act.

In theory, the sale of the older brother's half to the non-owning spouse would interestingly enough, require written consent from the non-owning spouse. (I think!)

NoQuarter

blueythebear wrote: »

The protections in the Family Home Protection Act 1976 and the Civil Partnership and ...Cohabitants Act 2010 prevent the transfer of an interest without consent of the non-owning spouse/partner. Presuming both children inherit equal shares of the family home by will or intestacy, then the non-owning partner/spouse could only prevent the transfer of the property.

If the younger child dies, the non-owning spouse then could inherit only the half that belongs to their spouse/partner. Ownership of the house would still be in two shares, the older child and whoever inherits when the younger child dies.

Despite the odd nature of the ownership in this case, the home would still be a Family Home within the meaning of the 1976 Act and the equivalent in the 2010 Act.

In theory, the sale of the older brother's half to the non-owning spouse would interestingly enough, require written consent from the non-owning spouse. (I think!)

Aha! Imagine if the non owning spouse was schizophrenic! Now that would be an interesting one!

Thanks for your thoughts.

If you were the parents drafting a will and your main priority is your own children, what would be the best route to take in drafting the will to ensure it stays within the family as much as possible.

Is that basically an impossible task? As in no matter what child you give it to, if they die, it will always vest with their spouse/co-habitant?

Before the Co-Habitants Act, could it have been the case that you could transfer the whole property to the eldest child but perhaps give a right of residence to the youngest child and that way if the youngest child died, the property would still vest in the eldest child and the youngest childs partner would be essentially kicked out??

If so, does the 2010 Act change this because it gives similar rights to co-habitants as married couples? so now, if the eldest gets the full house (but is not living there) and the youngest has a right of residence and is living in the house, then dies, what happens the property seeing as the eldest is the owner? does the co-habitant have any rights to it?

Of course, even if the co-habitant has no rights, the spouse of the eldest child/owner will get the house if the eldest then dies!?

Very interesting topic I think and one which I often see around me!

blueythebear

NoQuarter wrote: »

Aha! Imagine if the non owning spouse was schizophrenic! Now that would be an interesting one!

Thanks for your thoughts.

If you were the parents drafting a will and your main priority is your own children, what would be the best route to take in drafting the will to ensure it stays within the family as much as possible.

Is that basically an impossible task? As in no matter what child you give it to, if they die, it will always vest with their spouse/co-habitant?

If the property was granted to the two siblings in terms of a joint tenancy, then both brothers would own it and if one died, the other one would essentially own the entire property as it would fall outside the estate. If the property was held as tenants in common then the dead brothers share would pass by will or intestacy to his spouse.

NoQuarter wrote: »

Before the Co-Habitants Act, could it have been the case that you could transfer the whole property to the eldest child but perhaps give a right of residence to the youngest child and that way if the youngest child died, the property would still vest in the eldest child and the youngest childs partner would be essentially kicked out??

If so, does the 2010 Act change this because it gives similar rights to co-habitants as married couples? so now, if the eldest gets the full house (but is not living there) and the youngest has a right of residence and is living in the house, then dies, what happens the property seeing as the eldest is the owner? does the co-habitant have any rights to it?

Of course, even if the co-habitant has no rights, the spouse of the eldest child/owner will get the house if the eldest then dies!?

Very interesting topic I think and one which I often see around me!

Life interest could be one way to ensure that the estate remains in the family but a disposition of the property in a joint tenancy would suffice. However, in a joint tenancy if the older sibling dies, then the younger sibling has ownership of the property and if he subsequently dies, then the property could go out of the family.

Ultimately, if you want to make sure that your property remains in the family, you can only really do so for one generation. After that, anything can and often does happen and you'll be long dead anyway.

The Land Law and Conveyancing Reform Act 2009 abolished the mechanisms that could ensure that property remains in the family (Fee Tail estate) in order to ensure that land was freely transferrable. The Fee Tail estate meant that the land could only transfer to certain persons on the death of the owner and that it could not be sold or otherwise transferred any other way.