Declarations of Trust14.01.2016
Most homes are owned in the joint names of the two adults that live there, but the mere fact that the property is legally owned in two names, does not automatically demonstrate the true ownership intentions.
Many people will be familiar with the concepts of Joint Tenants and Tenants in Common. With Joint Tenants, the property is owned together, as a unit, there is no reference to individual shares or percentages. If anything happens to one of the owners, the other one, through the principle of Survivorship, will automatically own the whole of the house, no inheritance tax, no probate required. For many couples, this accurately reflects the way they wish
to hold the property.
However, in our ever more complex lives, this method does not always reflect the background to the purchase. For example, an older couple bringing different amounts of deposit monies with them, a property being transferred into the joint names of existing owner and new partner, a young couple where one set of parents are “gifting” the deposit to their child, a house being purchased jointly by a number of adults – all situations where owning as Tenants in Common may be more appropriate.
If you do wish to own in this way, a Declaration of Trust is an excellent way of setting out clearly the differing ownership shares of the parties. Information can be provided which ring fences one party’s existing equity in the home, or establishes the percentages which each party holds in the property.
When owning property as Tenants in Common, a Will is vital, as the principle of Survivorship will not apply and the parties will not automatically inherit their partner’s share. Equally, the share can be left to a third party, for example the children of a previous marriage.
The creation of a Declaration of Trust when purchasing the property allows the parties to avoid difficulties later on, if the relationship breaks down. This means that ownership can begin with all parties clear on their respective interests and duties as householders together.
Julie Hobson is head of the
family team at Gullands Solicitors
and can be reached at