If you want to leave a property to someone in your will in the UK, then the situation is fairly straightforward.
Essentially, all property, including land and buildings that are located in the UK can be left to a beneficiary in your will.
However, if the UK property that you own is as a ‘joint tenant’, which is what most married couples and also civil partners tend to do, then you will have a half share in the home. This share will automatically pass to the co-owner on your death.
This is the situation we find ourselves in.
There’s no choice in this matter, except if you own a property as ‘tenants in common’ and then you can control who will receive your share of that property (including your spouse or partner until they too die).
Tenants in common or joint tenants
You also need to appreciate that the value of your property’s share, whether you hold it as tenants in common or joint tenants, will be part of your estate’s valuation when it comes to calculating inheritance tax – unless there’s an exemption applicable to your situation.
If you own a foreign property, then the issue will be resolved by the country’s own laws where the property is located, though some EU member states may recognise a will written under English law.
If this issue affects you, then you really should check the validity of any will that is written in the UK to dispose of any high-value asset outside of the European Union.
Since your home is probably the largest asset that you will be leaving behind, then making a will is really important and this article covers the law in England and Wales and the rules may be different in Scotland and Northern Ireland.
One other thing to be aware of is that, as a couple, you’re more likely to die at the same time than a non-couple due to the amount of time you travel together and so on. This can create some difficulties with wording and decided on whose will should be enacted first.
To combat this, our solicitor inserted a clause to say that the other person will be treated as having died before the other unless they outlive them by 30 days or more. This helped simplify the instructions of our will and you would be well advised to seek similar advice.
Our will writing questions and answers
There will undoubtedly be specific questions that you may be looking for answers to, so you should seek professional legal advice when it comes to writing your will. However, here are our will writing questions and answers that may cover some of your needs:
How do I avoid inheritance tax on my property?
You may need to take specific legal and professional tax advice that you or your spouse will not need to pay inheritance tax on an asset they inherit.
Another way to lower your inheritance tax bill is to leave your home to another direct descendant, such as your child or grandchild (it’s worth noting that nephews and nieces or friends do not qualify for this – more details below).
The rules were changed in April 2017, which saw an extra allowance being introduced to couples who can now leave a property that’s worth up to £1 million before any tax, though this depends on when they passed away.
This means you will save around £160,000 in inheritance tax, depending on:
- Who you leave your property to
- The overall value of your estate
- When you pass away.
Essentially, the new rules enable someone to leave their home to their spouse or partner tax-free if the property’s value is below £1million.
And if you’re passing a home to a direct descendant, then there’s an extra £150,000 in an additional tax-free allowance for the tax year 2019/20.
In April 2020, this will increase to £175,000 which is much higher than the £100,000 allowance when it was introduced.
Can I put my half of a house in my will?
Another potential question that a homeowner preparing their will may be asking is, ‘Can I put my half of a house in my will?’
If you own the property jointly with your spouse, then you are ‘joint tenants’. Essentially, if one of you dies, then under the current rules the surviving spouse will become the sole owner. There is no way of avoiding this and the ‘survivorship’ law will override any will as well as the laws of intestacy.
Alternatively, you could arrange to sever a joint tenancy and become ‘tenants in common’.
Under this arrangement, you will each own 50% of the home and you could then gift your 50% to who you like in your will, for example, leaving your share to your children.
As we do not have any children of our own, we decided to leave our will as ‘joint tenants’ as we were more than happy for our property to pass wholly to the other person. But of course, your situation may be different.
Later in this article, we discuss the prospect of property protection trust wills and some may see this as an opportunity to avoid paying inheritance tax. This will not be the case.
Get advice from a legal professional:
How to leave my house to my child
Another common question from a homeowner is, ‘How to leave my house to my child’.
This can be a complicated situation since the property will automatically pass to your spouse or partner when you die.
As explained earlier, you could opt:
- To becoming tenants in common so 50% of your property will pass to your child
- If you own the home outright you could put your property in a will for your child
- If you have a spouse in this scenario, then you could allow for them to live in it for the rest of their life and then have your child inherit one or both shares.
However, there is another potential route available that will ensure that your share of the family home will be passed to your children and that’s to take out a ‘property protection trust’.
This will enable your spouse or partner to remain living in the property for the remainder of their life. If your spouse or partner dies, then the terms of their will can dictate that their half of the home is then placed in a ‘will trust’ – the terms of this trust will be contained in the will.
The issue over care home fees
The issue that many people who own their home may worry about is the issue over care home fees.
For example, under the scenario of having moved from joint tenants to tenants in common and having a property protection trust in place, then should the surviving co-owner need to go into a care home, the local authority can only target the element of any asset that is owned by the person in care, which is half of the property.
This will then ensure that your children or other beneficiaries will at least inherit your half of the home (if you were the first to pass away).
Basically, when the surviving partner goes into care, then only their share of the property can be assessed for their care needs because the remaining half belongs to a trust.
Also, while you could ‘gift’ your children your house but then carry on living there without paying a market rate of rent may be interpreted as a deliberate ‘deprivation of assets’. The move can also be seen as being a ‘gift with reservation of benefit’.
What this means is that if it appears that you have handed your children your home in a bid to avoid care home fees, then the local authority can claim the property back from your children if they can prove that it was your intention to avoid paying care fees.
Can I leave my house to someone in my will?
If you own a property that you want to pass on, then you can leave your house to anyone you like and name them in your will. You may also decide to offer your property to a charity and this is also possible.
However, it’s important that you draw up a legally valid will that is recognised in law and you may need experts to help.
That’s what we did, we hired a professional solicitor who could draft us a legally watertight will and advice on all the decisions we had to make. Surprisingly, the cost was very reasonable and we also took advantage of their will storage service too. This ensures the master copy of our will is kept in a secure and fireproof safe until it is required.
We’ve discussed already what happens when you jointly own a property with someone and how you can leave your share, but if there’s no spouse or partner then you can decide what happens to your property after you die.
You could will it to someone offering them a ‘life interest’ or for a shorter period of time and you could create a ‘trust property’ to help protect the asset, whether that is land or buildings for the benefit of the trust’s beneficiaries.
There will undoubtedly be lots of other questions that homeowners may be considering when thinking about their will.
Essentially, when it comes to learning more about how to leave a property to someone in a will in the UK, then you are free to leave your home to a loved one or change your legal status so you can request your half of the property be left for another loved one.
Whichever route suits you, it’s important that everyone has a will to deal with the expected and ensure your wishes are known and respected.
This article is only intended for general information purposes and should not be used as a substitute for taking professional advice.