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Tenants in Common FAQ's

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Below are some quick links to help you acquire initial information about Tenants in Common agreements.

Your first step must be to make a Will.

If you die intestate, your assets will be distributed in accordance with the Intestacy Rules, laid down in the Administration of Estates Act 1925 and the Inheritance & Trustees’ Powers Act 2014. The people you would want to inherit your assets may not, and your Estate’s tax position could also be affected

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What are the consequences if you die intestate, as a couple owning property jointly?

If you die without a valid Will, or if you have a basic Mirror Will in place, your assets could be exposed to potential risks after the first partner passes away.

Additionally, once the second partner named in the Tenants in Common agreement dies, it is important to protect the assets intended to benefit your surviving loved ones.

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How to reduce potential Inheritance Tax liabilities?

Simple steps to manage your Inheritance Tax liabilities: 

  • Sever the tenancy on your jointly owned family home and any other properties which have been jointly purchased, and set yourselves up as Tenants in Common. 
  • Equalise your savings and investments into sole names.
  • Seek advice on setting up a Flexible Family Trust

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What is the fundamental difference between having a Tenants in Common agreement as part of a Will and not having one? 

The primary benefit of a Tenants in Common agreement is that when the first partner dies, their half of the property is directed into a Trust, according to the terms of the Will. The surviving partner can remain in the property. If and when the surviving partner goes into residential care, their assets will only include half of the property, as the remaining half is in the Trust. Consequently, this will also benefit the children of the partnership because, in the event of their future relationships breaking up, any assets in trust cannot be split with their former partners.  

To illustrate by contrast, the disadvantage of keeping a simple joint tenancy on a property is that when one partner dies, their half of the asset transfers in its entirety to the surviving partner. As such, the advantages of having half the assets in Trust no longer apply. 

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Planning in advance ensures that both your financial affairs and those of your partner/ spouse are in safe hands if the worst were to happen.

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 Tenants in Common - Frequently Asked Questions

Property can be owned as Joint Tenants or as Tenants in Common. In a joint tenancy, the partners own the whole property and do not have a specified share in it, while Tenants in Common each have a defined and documented  share in the property.

A Tenancy in Common (TIC) is one of three types of shared ownership Estates, in which each named party, typically spouses or common law partners, owns a share of the property. The other two types of shared ownership are Joint Tenancy and Tenancy by the Entirety. A TIC typically provides no right to survivorship.

Typically, married couples hold their property as Joint Tenants. However, while this is the norm, it is not obligatory.  Thus, a married couple can opt to own property as Tenants in Common. As Tenants in Common, each co-owner owns a specific share of the property. This is the option that we recommend at HB Partners Wills and Estate Planning. 

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Tenants in Common

Do you own a property jointly?

If so, it is worth considering changing your property ownership status to Tenants in Common for potential tax advantages. 

For further information and to check your suitability, please call us on 020 3355 2875 

What is the difference between "Joint Tenants" and "Tenants in Common"?

What does a Tenancy in Common mean?

Can a married couple be Tenants in Common?

For a no-obligation chat about setting up or reviewing your Will and Tenancy options on your property

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What steps should you take towards setting up a Tenants in Common agreement within your Will? 

At HB Partners, our consultants can advise you on all aspects of Will writing and Tenants in Common agreements

Owning property, the Nil Rate Band (NRB) and Inheritance Tax

For Inheritance Tax, there is a tax threshold, known as the nil-rate band, and below this limit, you pay no tax as the tax rate is 0%. 

For the 2021/22 tax year, the threshold is £325,000. The rate payable is typically 40% on anything above this amount.

What is the Residence Nil Rate Band?

The Residence Nil Rate Band (RNRB) refers to Finance (No.2) Bill 2015, where an extra Residence Nil Rate amount will be introduced for deaths on or after 6th April 2017. This applies to individuals with direct descendants who have an Estate (including a main residence) that exceeds the Inheritance Tax threshold (or nil-rate band) of £325,000. 

An Estate will be entitled to the additional RNRB if: 

·       An individual owns a home, or a share of one, as part of their Estate.

·       An individual's direct descendants, such as children or grandchildren, inherit the home or share it. Direct descendants inherit property when they become:

·       'Absolutely' entitled to it, or

·       Beneficially entitled to a qualifying interest in possession in the property, through a Trust. 

·       The value of the individual's Estate does not exceed £2 million. For Estates valued at more than £2 million, the RNRB (and any transferred RNRB) will be gradually withdrawn.

·       An Estate will also be entitled to the RNRB if the owner downsizes, sells or gives away their home. This applies after 7th July 2015.

How much is the residential nil rate band? 

The current threshold for the RNRB is £175,000. This will increase yearly in line with the Consumer Price Index (CPI).

If you qualify, this could mean an allowance of £500,000 at 0% Inheritance Tax. If you qualify for RNRB, the maximum threshold for 0% Inheritance Tax is £500,000.

Our recommendation to you, if you own a property in joint names and are seeking to minimise your IHT liability: 

  • Sever the tenancy on your jointly owned family home and any other properties which have been jointly purchased. 
  • Equalise your savings and investments into sole names.
  • Seek advice on setting up a Flexible Family Trust

Our Solution

Jointly owned family home

Married Couples/Civil Partners with Estates valued at less than two times Nil Rate Band (NRB), and Non-Married couples any Estate value.

Jointly owned family home

Married Couples/Civil Partners with Estates valued at more than two times Nil Rate Band (NRB).

Following first death, the deceased's share of the assets is directed into their Flexible Family Trust via their Will. The surviving spouse or partner can continue to live in the family home and benefit from the other assets, and can still move house if they choose to do so. If the survivor enters care, the survivor's assets only include a half share of the family home plus any other assets they own.

Your beneficiaries will have access to the Flexible Family Trust funds. However, the Trustees can ensure that these assets do not enter their own beneficiaries' Estates, and therefore are protected from the following:

Marriage after Death (MAD)

Placing half of the family home and other assets into a Flexible Family Trust on first death can ensure that, in the event of the surviving partner remarrying, those assets have a much greater level of protection should they subsequently divorce. This, in turn, will reduce the threat of your children being disinherited. The surviving partner is still entitled to the Trust assets.

Creditors or Bankruptcy

If your beneficiaries are subject to creditor claims/bankruptcy, their inheritance will be protected from such claims.

Further or Generational IHT

Holding the Flexible Family Trust assets can ensure that they are not added to the beneficiaries' Estates, thereby impacting on their own IHT.

Divorce

If you place your assets in Trust, this will ensure that if your children/chosen beneficiaries subsequently divorce, their inheritance will be safeguarded.

Residential Nil Rate Band

The Flexible Family Trust ensures that if there are lineal descendants as beneficiaries to a property, the RNRB can still be claimed.

Care

If assets are held in the Flexible Family Trust, they will also be protected against the beneficiaries' own care costs.

In some cases, it may be beneficial to use multiple trusts. Multiple trusts can increase flexibility and autonomy, as it enables each beneficiary to have and be 'in control' of their 'own Trust'. There are also various options open to Trustees following death to try and reduce the impact of future tax charges in some cases.

When the first partner dies, their half of the family home and other assets are directed into their Flexible Family Trust and Interest in Possession Trust (IIP) via their Will.* 

The surviving spouse can remain in the property. If and when the surviving partner goes into residential care, their assets will only include half of the property, as the remaining half is in the Trust.

There is no Inheritance Tax (IHT) liability between married couples and civil partners. This is known as the spousal exemption. If you leave assets amounting to more than the tax-free Estate to an IIP on death, there is also no IHT on 1st death, as it is also treated as a gift between spouses.

Your beneficiaries will have access to the Flexible Family Trust funds. However, the Trustees can ensure that these assets do not enter their own beneficiaries' Estates and therefore are protected from the following:

Marriage after Death (MAD)

Placing half of the family home and other assets into a Flexible Family Trust on first death can ensure that, in the event of the surviving partner remarrying, those assets have a much greater level of protection should they subsequently divorce. This, in turn, will reduce the threat of your children being disinherited. The surviving partner is still entitled to the Trust assets.

Creditors or Bankruptcy

If your beneficiaries are subject to creditor claims/bankruptcy, their inheritance will be protected from such claims.

Care 

If assets are held in the Flexible Family Trust, they will be protected against the beneficiaries' own care costs.

Divorce

If you places your assets in Trust, this will ensure that if your children/chosen beneficiaries subsequently divorce their inheritance will be safeguarded.

Residential Nil Rate Band

The Flexible Family Trust ensures that, if there are lineal descendants as beneficiaries to a property, the RNRB can still be claimed.

Further or Generational IHT

Holding the Flexible Family Trust assets can ensure that they are not add to the beneficiaries' Estates, thereby impacting on their own IHT.

Multiple Trusts

In some cases, it may be beneficial to use multiple Trusts. Multiple trusts increase flexibility and autonomy, as each beneficiary will thus be 'in control' of their 'own Trust'. Trustees also have access to a range of options by which to reduce future IHT liability. 

* Interest in Possession (IIP) trusts give a named beneficiary (or beneficiaries) the right to any trust income.

Jointly owned family home

Unmarried couple with an Estate valued at more than two the nil rate band (NRB)

With no spousal exemption to apply, Inheritance Tax is payable over the NRB threshold. 

When the first partner dies, their half of the family home and other assets are directed into their Trust via their Will. The surviving partner can remain in the property. If and when the surviving partner goes into residential care, their assets will only include half of the property, as the remaining half is in the Trust.

In some cases, it may be beneficial to use Multiple Pilot Trusts, as there are various options open to Trustees, following the death of a settlor, to reduce the occurrence of periodic and exit charges. Multiple Pilot Trusts will also increase flexibility and autonomy, enabling the beneficiaries to control their Trust.

Your beneficiaries will have access to the Trust funds. However, the Trustees can ensure that these assets do not enter their own beneficiaries' Estates, and therefore are protected from the following:

Care

Holding the assets in the Trust ensures that they do not add to the Beneficiaries' Estates and, as such, they cannot be assessed as part of future costs of care.

Creditors and Bankruptcy

Assets held in Trust will be protected against the beneficiaries' own creditor and bankruptcy costs.

Marriage After Death (MAD)

By placing half of the family home and other assets into a Trust on first death you ensure that, should the surviving partner marry in the future, those assets cannot be taken into the marriage. By doing so, the threat of your children disinherited is removed. The surviving partner is still entitled to the assets held within the Trust.

Further or Generational IHT

Placing the assets into a Trust ensures that they are not add to the beneficiaries' own Estate, which would increase their Inheritance tax liability. 

Divorce

Placing the assets into a Trust ensures that, if your children/chosen Beneficiaries are subject to Divorce proceedings, in the future, their inheritance from you will be protected from the separated partner in the settlement. 

Residence Nil Rate Band (RNRB)

Our Trusts ensure that, if there are lineal descendants as beneficiaries, the Trust will still qualify for the RNRB.

 Single or widowed People

The beneficiaries have access to the flexible family trust funds. Still, the trustees can ensure that these assets do not enter their estates and so, therefore, are more protected from the following:

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Divorce

Assets entering the Trust on death can ensure that, if your children/chosen beneficiaries were subject to divorce proceedings, what you intend them to receive could be more protected from divorce settlements.

Residence Nil Rate Band (RNRB)

The Flexible Family Trust ensures that if there are lineal descendants as beneficiaries, the RNRB can still be claimed

Creditors or Bankruptcy

Similarly, if your beneficiaries are subject to Creditor Claims/Bankruptcy, their inheritance could be protected from such claims.

Further or Generational IHT

Holding the Flexible Family Trust assets can ensure that they do not add to the beneficiaries' estate and impact their own IHT.

Care

If assets are held in the Flexible Family Trust, they could also be protected against the beneficiaries' own care costs.

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What do you need to consider first?

Owning property and the Nil Rate Band (NRB)

Are you a married couple below 2* NRB?

Are you a married couple above 2 * NRB?

Are you a non-married couple above 2 * NRB?

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Are you a single or widowed person?

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