A ‘Declaration of Trust’ is something that you should consider if you are buying a property with another person. You will be asked if you wish to purchase the property as ‘Joint Tenants’, or as ‘Tenants in Common’.
If you own the property as Joint Tenants, then each co-owner owns the property as a whole, rather than having distinct shares. In the event that one co-owner dies, then the property will pass automatically to the surviving owner and that person will become the sole legal owner of the property and is free to dispose of the property as they wish. This is called ‘The Right of Survivorship’ and will be observed irrespective of what is said in the deceased’s Will.
‘Tenants in Common’
Though being Joint Tenants is the most common way of co-owning property, there is an alternative of a ‘Tenancy in Common’. With this type of ownership, each party has a distinct share in the property. In this scenario, when one co-owner dies, his or her share does not pass straight to the surviving co-owner, but rather according to the terms of their Will or under the intestacy rules if there is no Will.
Here are just a few reasons why owning a property as Tenants in Common may be preferable to a Joint Tenancy:
- You may not want your share of the property to pass to the surviving owner upon your death. For example, you may prefer to have children from a previous relationship inherit your share of the property.
- One party may have provided a larger contribution to the purchase price of the property. If this is the case, then you may wish for this to be recognised in the event that the property is sold or if your relationship with the other co-owner breaks down.
- You may wish to own the property as tenants in common for asset protection reasons.
If you do wish to own a property as Tenants in Common, then it is important that you think about setting up a ‘Declaration of Trust’.
‘Declaration of Trust’
A Declaration of Trust is a document which sets out the shares that each owner has in the property. Whilst it is possible for you to own the property as Tenants in Common in equal shares, one party may be putting a larger amount into the purchase or indeed all of the deposit, so you may wish to agree that the proceeds should actually be split, for example, 60/40.
You may wish to agree that the party putting in their deposit gets their money back and then the balance is split equally.
You may alternatively decide that your shares in the property are not fixed at the outset, but rather determined by the financial contribution of each party during the period of ownership (e.g. if one party makes a contribution towards home improvements).
A Declaration of Trust can also set out who is responsible for paying the outgoings in respect of the property (for example, the mortgage, utility and other bills). It can also provide a solution in the event that the relationship breaks down or if either party wants the property to be sold, by providing a method for one party to buy out the other’s share.
Another common use for a Declaration of Trust is the situation where a third party (such as a parent) is assisting with the purchase of the property, but is not to be named on the title to the property. If the contribution by the parent is an investment and not a gift, then it is important that this investment is protected. Even if it is a gift to their son or daughter it may not be a gift to their partner, the other joint owner, so they may wish to protect this in the even of a breakdown of the relationship between their son or daughter and the partner who is the other joint owner. This can be done by means of a declaration of trust as well.
- Without a ‘Declaration of Trust’, there is more chance of time consuming and costly disputes about the division of proceeds when a property is sold or relationship breaks down.
- If you do enter into a Tenants in Common arrangement, make sure your Will is up to date with who is to benefit from your share of the property upon your death.
- If you are a Joint Tenant, but now feel that it would be better to own your property as Tenants in Common, then it is possible to ‘sever’ the joint tenancy and change the arrangement.
Andrea is a Director and Head of Private Client at Verisona Law, specialising in Wills, probate and tax planning. She also advises on lasting powers of attorney and declarations of trust in relation to property ownership. Andrea is often asked to advise elderly parents and their children on the issue of trust of the family home and gift of the family home to the children.
Many clients regard her as their ‘family’s solicitor’ and come back to her whenever they need legal advice. Clients have appointed her to act as their Attorney in the event that they become unable to manage their own affairs and she has acted in this capacity on a number of occasions.
Andrea is a member of Solicitors for the Elderly.
Andrea qualified as a solicitor in 1985 and has worked as a full time solicitor since then. She has been with Gray Purdue, now Verisona Law, since 1987, initially acting for clients in matrimonial cases. Since 1999 she has advised on Wills and probate, and related matters.
She was on the Solicitors panel for the Leprosy Mission for a number of years and supports ‘free Wills’ campaigns designed to raise money for charities.
- Acted for a client whose husband died unexpectedly without making his Will and leaving her with a young baby.
- Made an application to the Court to amend the rules of intestacy to ensure that the client was able to manage financially without having to tie up funds for her baby daughter until she was older.
- Acted for a client whose solicitors at the time had failed to do a deed of variation to reduce the amount of inheritance tax that was payable on his late father’s estate. Ensuring that the client received compensation for this and was put in the position he would have been had the deed of variation been prepared and signed in the time allowed.
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