If your property is severed with your partner being the other owner, it is important that you ensure that you make provision in your Will as to where your share of your property will go after your death, if you don’t, you run the risk of your surviving partner being left vulnerable after your death. If you would like to protect your partner’s future in the property, or indeed on any property they wish to move into after your death, whilst still protecting your share, a more robust type of Will may be the best option.
A Protective Will Property Trust is a type of Will Trust where the Testator gives their share of the main family home to the Trustees to hold for the lifetime of the other joint owner, so they are able to keep living in the property or any other property that becomes the main family home until their death. After the death of both owners, the full property will then be distributed as per the Wills of both owners so a Testator is able to give their share of the property to the same or different beneficiaries that the other owner.
In order to provide some protection for your family, a Protective Will Property Trust can only be established whilst both parties remain owners of the property in question. The usual course of action for a couple when buying property is to own it as joint tenants and this means that both of them own the property and it passes by survivorship entirely to the other owner upon death. However, by simply severing the tenancy of the property so that they each own a specific percentage of the property, say 50/50 then under the terms of your Will it can be passed to other family members or loved ones.
A Protective Will Property Trust enables the Trustees of the Will to hold the share that the Testator owned in equity, this means that should the other owner decide to move into a new property and use their share of the proceeds of sale, or indeed the full proceeds of sale, the equitable share that the Testator had prior to their death is protected. In practice, this can often be accomplished by placing a restriction onto the deeds of the new property to protect the share that the Testator originally left in Trust. During the Trust period, the Trustees will be required to keep the property maintained, together with the surviving owner, just as if the Testator was still alive. If there are any costs for doing this, a Protective Will Property Trust allows for these costs to be recouped from the rest and remainder of the estate, or when the said property is distributed.
The major benefit of a Protective Will Property Trust is that it allows the other owner, for example a spouse or a partner, to remain living in that property for the remainder of their lifetime, but allows them the flexibility of moving properties if they wish to, all whilst the Testator’s share of the property is protected by being held by the Trustees.
If you would like to provide less powers and flexibility for your surviving owner of the property and would like your share of the property to be distributed either after the death of the surviving owner or during their lifetime in such situations where the surviving owner wishes to sell the property or they cohabit with a new partner or indeed remarries, you can opt for a Will with a Lifetime Interest for your surviving owner. This provides the protection for your surviving owner to remain living in the property, or a right to the income from the property if rented, but can be inflexible and can be terminated during their lifetimes by your Executors and Trustees if the surviving owner breaks the terms of the lifetime interest.