DOES IT MATTER HOW YOUR NAME IS REGISTERED ON THE TITLE OF YOUR HOME, EVEN WITH A WILL?
ANSWER: IT DEPENDS!
There are many couples out there who have purchased and/or built a home together, had their families whilst living in it and either haven’t taken much notice of what is on the Certificate of Title, or forgotten.
That is okay if in their Wills they are leaving all their estate to each other. However, often after 30 or 40 years of marriage, one partner may quietly make an appointment to make a Will to ensure their “half of the house” goes to their children and not to their spouse. This may be a result of the fear of them dying before their partner and a belief, whether real or false, that their partner will find someone else to look after them and this new person will then benefit from all their lifetime of hard work and the children miss out.
If a home is in the “sole” name of the other partner then it is that person who has the sole ability to give that property away and should you die then you have nothing to give your children (in this example). However, the usual manner of holding of a property for a couple is for the property to be in both names as “joint proprietors”. The significance of this is that when one partner dies, the property can and should be transferred to the surviving partner (known as a Survivorship Application) as a result of the words on the Certificate of Title. This is so, even where a Will is in place leaving the property of the deceased to someone else.
This can be and is a huge surprise to many people, particularly in the above example.
The alternative is for a couple to hold a property in both names as “tenants in common”. This could be in equal shares or as some other percentages, perhaps representing what each partner originally invested in the property. Say one partner is registered as to 30% and the other as to 70% on the Certificate of Title. It is this interest that passes to the beneficiaries named in your Will and could be left to your partner to live in with some conditions and then ultimately to the children of the relationship.
There are many situations where such knowledge is beneficial in the planning of one’s affairs and it need be noted that where two names are on a Title, the manner of holding can only be changed by agreement between the two. That is, the original concerned partner need decide whether they are going to raise their concerns with their spouse. Whilst dealing with the family home between a couple, no stamp duty is payable in such an example to change ownership from joint proprietors to tenants in common in equal shares. If a third person, however, like a child is to be added to the Title then stamp duty will be payable.
This article is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from De Marco Lawyers and other relevant experts.