More people than ever before own their own homes, and while an increasing number of single people are home owners, most properties are owned by couples.

If a property is owned jointly by married couples, civil partners or simply two people living together as partners or friends, what happens if the relationship breaks down or one dies? 

The following questions and answers are designed to give some help and guidance.

Q: My husband died recently. Because we bought our home together, is it now mine?
A: If you bought as joint tenants then the property will pass to you automatically by survivorship, overriding any provisions made in a will. Probate won't be needed. If you bought as tenants in common, and therefore own your own individual share, then the deceased partner's share will pass according to their will, and probate must be applied for.

If there's no will, then the law under the Intestacy Provisions contained in the Administration of Estates Act 1925 will apply. It isn't automatic if you're married or in a civil partnership that you'll inherit, so it's always best to make a will.

Q: Why would we buy our home as tenants in common?
A: Sometimes people have been married or been in a relationship before and wish to make sure their children inherit their share of the house. By buying as tenants in common you're free to leave your share to your children, and at the same time protect your partner by creating what is known as a 'life interest' for them.

This means that your partner would be able to live in the property for the duration of their natural lifetime or until perhaps they cease to live there permanently, remarry or even co-habit. During this period, the children could not force a sale of the property. 

On the death of the surviving partner, however, or the life interest coming to an end, then the property would be sold, with the surviving partner's share going to them or their family, and your share passing direct to your children under your will.

Sometimes, as people come close to retirement age, they worry about paying for long term care in the future. They're concerned that their house will be sold and all proceeds used to pay for their care. But severing the joint tenancy and creating a life interest, as described above, only half the proceeds are used towards the surviving partner's care, and the share of the deceased partner passes their children under their will.

At Access Legal from Shoosmiths these wills are referred to as Home Protection Trust Wills.

Q: I sold my house and used the profit as the deposit on a new one with my partner.  My partner didn't contribute to the deposit.  If we break up how can I get my money back?
A: Making a simple 'Declaration of Trust' at the same time you complete the purchase of your new home will regularise your respective entitlements. For instance, the Deed would say that on sale and after the repayment of the mortgage (if any) and the costs of sale, you'd receive a sum or percentage equal to your original investment, and after that the profit would be split equally between you.

If you've no formal agreement to regularise the financial entitlement, then on separating, a court is likely to split the net proceeds of sale between you 50/50.

Q: I've moved in with my boyfriend who owns his own flat.  What happens to me if he dies?
A: He should make a will to protect you and leave the property to you or create a fixed time for you to live there before his executors are able to sell. If he doesn't have a will you'll have no entitlement to the property, and his children, parents or brothers and sisters will inherit. If you've lived together for more than two years you'd be entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but a formal claim must be made, which can be extremely costly, as well as emotionally distressing at a time when you'd least need it.

Q: If we own the property as joint tenants can anything change that and put my home at risk?
A: If one partner is made bankrupt the trustee in bankruptcy can apply to sever the joint tenancy and possibly force a sale.

Also, if one partner dies and a claim is made under the Inheritance (Provision for Family and Dependants) Act 1975 then the Court can make an Order for the joint tenancy to be severed and again force a sale. An example here would be where the deceased partner had been in a previous relationship and was paying maintenance for a minor child.  If no provision is made for that child in a will, the court can, on application, order provision to be made.

Q: We own our property as joint tenants, have both been married before, and have children from our previous relationships. We'd like to make a new will to put our affairs in order and to protect our respective children. Can we change to tenants in common?
A: Yes. Simply by serving a formal notice, one on the other, stating that you intend to sever the joint tenancy and to own as tenants in common, before registering it at the Land Registry. This is a very simple and cost-effective process, and is usually done by a solicitor at the same time as making a new will for you.

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