Last week I had a meeting with a lady who was very concerned her husband won’t make a Will. Their situation was not uncommon. They are in their 50’s, and both have grown up children from previous marriages. They own their own house jointly, with no mortgage, and no major other assets.

As neither of them have a Will currently, it is a bit of a lottery as to who benefits. Quite naturally, they would both like to benefit their own children. On the first death, the house which is the major asset will pass to then survivor. If there is still no Will, when the second partner dies, (via the laws of intestacy), it would then pass to the surviving partners children. The children of the first partner to die will not benefit. The laws of intestacy state, where a deceased person’s assets go, if they do not have a Will.

A solution in a case like this, is for the couple to change the way the house is owned. Most jointly owned property is owned as normal “joint tenancy” where the house will pass to the survivor on death. However, this can be changed to “joint tenants in common” so they each can own their own half share.

For example, if the house is worth £200,000, they could each own a half share worth £100,000. This on its own, however, will not totally solve the problem. As we saw before, under the intestacy rules, the surviving partner will still get the share from the late partner, so they will still own the house.

What is needed is for the couple to write Wills. The Wills can allow the surviving partner to remain in the house, after the first death. Each partner can benefit their own children in their Will, but the children may not receive very much, until the house is ultimately sold.

This type of arrangement can also help in situations where the surviving partner re-marries, after the death of their spouse. In such cases, there is a real danger that all the children lose out, as the new spouse takes everything.