Tenants in common - wills

A discussion forum for the elderly, their carers and advisers
Beech
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Post by Beech » Sat Jan 07, 2006 12:00 pm

Hi Andrew,

I hadn't intended to offend you. What you do now is obviously up to you, we can only offer opinions based on what we know and what we think.
Having studied where our assets would end up if we are intestate we find it matches precisely what we want to happen.
It might depend on who's around at the time to administer the estate, and also how capable they are.

We've had to deal with three intestacies and it's horrible, it's emotionally draining to have to do after a bereavement, it costs money, can cause arguments over the most trivial thing because emotions are high. If you write down what you want, it at least makes things easier for your family and can be especially relevant when if comes to the smaller things, pictures, jewellery and so on. The house is easy to deal with, and means using a solicitor chosen by the administrators, it's dealing with what's inside it that can bring tears.

There is a little information on the BBC - Watchdog - Legal FAQs - "joint tenants" and "tenants in common" but I don't think it adds to what you already know. Transferring ownership of the property to the surviving partner will involve using a solicitor.
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andrew54
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Post by andrew54 » Sat Jan 07, 2006 12:32 pm

We've had to deal with three intestacies and it's horrible....
So many people are saying we should make a will, maybe we should. But let me relate a couple of cases I have known of.

1. Elderly gentleman goes to solicitor to make a will.
Sol "who do you want to be executors?"
Gent "my two sons"
Sol "who do you want to leave your assetts to?
Gent "equally split between my children."

The will is then made out leaving the estate split between the two sons. The gentlemans daughters get nothing. Not how he wanted it to be!!!
Solicitor didn't ask whether there were any daughters, gent never thought to mention.

2. A solicitor made out a will for a widow. The will left her house (named as at xxx address) to her daughter, chattels to daughter, and residue to grandaughter.
Over the years the widow moved house, two more grandchildren were born, and widow died.
The house named no longer belonged to the widow, so daughter got only the chattels, the house and savings all went to the grandchild named, the other two grandchildren got nothing.
This was so different from what the widow really intended.

despair
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Post by despair » Sat Jan 07, 2006 1:22 pm

Sorry but in the first case the elderly gent did not bother to read the copy of the will he would have been sent because good wills say ALL children or specifically mention them by name


2nd Case

Again a good will should never say this that or the other address for a house ..........because its always possible that one would move

However any good solicitor and any one who wants to leave things sensibly should darn well say

x % of the value of my estate to y

x% of the value of my estate to Z

etc etc

Bequests of specific pieces of jewellry art etc should always be listed separately and attached to the will

Solicitors can only do what the client asks .......if the client is stupid and does not pen out in the first place exactly what they want its their fault not the solicitor

Conveyancer
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Post by Conveyancer » Sat Jan 07, 2006 3:59 pm

despair wrote:28 yrs ago properties were often deeded differently than today
I don't think so. The general way things are and were is that husbands and wives hold as joint tenants and investors and business partners hold as tenants in common. (An exception may be a second marriage where one of the parties wishes to ensure that the children of his/her first marriage benefit eventually.) The way you hold property does not of itself reduce the tax bill. If you wish to declare a trust in respect of your half share interest then you have to sever the joint tenancy.
despair wrote:(Back then ordinary folk had nothing whatever to fear from Inheritance Tax ....that was for the rich alone....now its catching huge numbers of very ordinary folk
and you really do need to think it through in the light of todays house prices )
Not quite true. I was doing probate in the early 1970's and "ordinary folk" were paying estate duty (as it was then called). Obviously who is going to get caught varies from year to year and from region to region if you are comparing like property with with like. If Gordon's prudence has allowed house prices to rise it is only fair that he should get his share. :P
despair wrote:There are some very good solicitors and yes sadly there are some useless ones
The problem is that people don't know how to distinguish between the two.

Conveyancer
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Post by Conveyancer » Sat Jan 07, 2006 4:24 pm

I take a half way position between Andrew and Despair.

I think a solicitor needs to be alert, particularly when dealing with the elderly or the less well informed. As I said above, a solicitor should ask lots of questions when taking instructions for a will.

It is all very well saying that clients should read what they sign, but alas they do not. They lie about it. They trust their lawyers, which is nice, but unfortunate if the lawyer has misunderstood. Few clients (other than professional ones) read beyond the first page, even if the document is written in plain English.

The first case was clearly an unfortunate misunderstanding. The client clearly did not read the will, or if he did he did not understand it. The solicitor ought to have gone through it with him, although this may have involved the client nodding and saying "Yes, very nice" every time the solicitor paused for breath.

In the second case I think more blame can be attributed to the solicitor. When making a gift of a house the solicitor should always ask if the gift is to apply to any house owned from time to time. If the house is not intended for occupation, then it is indeed probably more appropriate to suggest specific shares in the residue. Similarly, when there are grandchildren it is wise to establish whether it is the existing or future grandchildren who are to benefit.

But back to Andrew.

There is no downside to making a will. You are obviously well informed and will be able to tell if the will has been drawn up incorrectly. It is unwise to rely on the intestacy rules as they may change. A straightforward will should not be expensive. Refusing to make a will because a few go wrong is like refusing to go to the doctor in case he makes a misdiagnosis.

despair
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Post by despair » Sat Jan 07, 2006 7:02 pm

" if Gordons prudence has allowed property prices to rise its only fair he should get a share "

Like hell it is

The property prices that have gone sky high over many more years than GB has been tinkering with the books are mainly down south where the cost of living is also sky high along with Council Tax

Everyone convieniently forgets all the extra money ripped off Shire County residents under Mrs T to support some of the London Boroughs

Now Council Tax is higher down South because millions have been diverted up north to REDUCE their council tax because of course thats where the support for T Blair is

Salaries now are little different wherever you are in the country but the cost of housing , council tax etc is much higher down south
State Pensions are the same no matter where you live

Care Home costs are at least double down South to up North

Gordon Brown has single handedly wrecked the pension funds of every company and even private funds via Insurance companies solely because he has and continues to rip them off by 5 billion a year

This plus the new accountancy rules he devised for Pension Schemes which meant they had to sell off a load of shares when they were low and have not been able to reinvest have affected the Stock Market which of course has also decimated pension funds

The only people sitting in clover are all the Civil servants , MPS and Council Staff with gold plated and inflation proof pensions the poor council tax payer has to pay for

flybynight
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Post by flybynight » Thu Jan 19, 2006 8:43 pm

You could always get a will written that states your wishes are to follow the rules of intestasy. If you don't leave a will your heirs will be continually looking for it.

andrew54
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Post by andrew54 » Thu Jan 19, 2006 9:20 pm

despair wrote
The property prices that have gone sky high over many more years than GB has been tinkering with the books are mainly down south
Here in the north the house I bought for £17,500 is now worth £200,000

I bought the house to live in, not to leave cash to my children who will be nearly 60 before I die. Forty years without a mortgage is what I hope to enjoy.

flybynight wrote
You could always get a will written that states your wishes are to follow the rules of intestasy. If you don't leave a will your heirs will be continually looking for it.
No, they know I haven't written a will.

.

Conveyancer
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Post by Conveyancer » Thu Jan 19, 2006 10:19 pm

Andrew

Consider the following scenario:

A man (a widower) has two sons. Son A has two children, Son B has five children.

Two sons go out for a drive together and are involved in a fatal accident; man dies of shock when he hears.

Man has not made a will. What happens to his estate? Each child of son A gets a quarter and each child of son B gets a tenth. The wives of each son, whom the man was very fond of, get nothing. Wife of son A does not mind as A had a nice endowment policy and both children have finished education and are doing well. Wife of son B is not very happy as she is left with a house with a mortage and five children 8, 9, 10, 18 and 19 all in education. 18 and 19 year olds will get their share at once, but the others have to wait.

Not saying this is anything like your situation, but it gives you an idea of what could happen.

Also the rules of intestacy are perhaps not quite as straightforward as you think. I have cut and pasted this from a government site:

When a person dies intestate (that is, without having made a valid will), his or her
estate is distributed according to the intestacy rules specified in the
Administration of Estates Act 1925. More specifically, these rules state who will
receive what share of the deceased’s estate. If a person dies leaving a surviving
spouse and children or other close relatives, and the estate is of a sufficient
value, the surviving spouse will receive a specified lump sum. This lump sum is
commonly referred to as the statutory legacy. Since 1993, the statutory legacy
has been set at £125,000 where the deceased leaves a spouse and children, and
£200,000 where the deceased leaves a spouse and parents or siblings but no
children.

The remainder of the estate, once the statutory legacy has been paid, is divided
between the spouse and the other nearest surviving relatives. If the deceased
leaves children, half of the remainder will be paid directly to the children, and the
spouse will take a life interest in the other half. This means that the spouse
receives any income generated by the half in which he or she enjoys a life
interest for the rest of his or her lifetime. When the spouse dies, the capital sum
passes to the children. If there is a spouse but no surviving children, half of the
remainder will be paid directly to the closest relative(s), and the spouse will take
an absolute interest in the other half.


Think seriously about making a will – it really can make life easier, as well as letting you decide what you want to happen to your estate according to all the family circumstances.

andrew54
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Post by andrew54 » Thu Jan 19, 2006 11:33 pm

Can you please clarify, Conveyancer, just what is meant here by 'children'. Are my offspring aged 26 and 29 termed 'children'?

Conveyancer
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Post by Conveyancer » Fri Jan 20, 2006 10:17 am

andrew54 wrote:Can you please clarify, Conveyancer, just what is meant here by 'children'. Are my offspring aged 26 and 29 termed 'children'?
Yes.

PJG19068
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TENANTS IN COMMON - CAN IT BE SEVERED ?

Post by PJG19068 » Mon Feb 20, 2006 12:38 pm

DOES ANYBODY KNOW HOW OR IF A TENANTS IN COMMON CONTRACT CAN BE SEVERED BY ONE OWNER IF THE OTHER DOESNT WANT TO AGREE TO IT ?

ANY HELP APPRECIATED

PETE

Conveyancer
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Post by Conveyancer » Mon Feb 20, 2006 12:55 pm

If a property is held as tenants-in-common the interest is already severed and accordingly no one needs to do anything.

If a property is held as joint tenants any of the joint tenants may sever the joint tenancy by serving notice on the other(s) - consent is not required.

PJG19068
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Post by PJG19068 » Mon Feb 20, 2006 1:00 pm

Hi Conveyancer,
Thanks for the reply.
My Mother & Brother have a 50:50% Tenants In Common agreement which is 15 years old now and was originally intended to help my brother 'get on his feet', with the intention that he bought the remaing 50% from my mother.this has not happened and he refuses to pay any monies to my mother. I guess my question is, is there any way my Mother can recoup her 50% or force him in to selling?

Thanks

P

Conveyancer
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Post by Conveyancer » Mon Feb 20, 2006 1:33 pm

I think the question you have raised is worthy of a new thread. If you would like to start it, I'll answer it.

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