Breaking Joint Tenants to Tenants in Common

[Irene Adler]

Hello, I would be grateful for any advice/help.

Over the last 12 months my grandmother developed rapid onset dementia, she is no longer compos mentis and is now living in a care home. Unfortunately she declined very rapidly so it was before we could get her affairs in over. I am going to be applying for power of attorney to enable me to access her money to help pay for her care home costs.

My grandfather has recently had a bad medical diagnosis and is worried about getting his affairs in order, he has asked me to assist him in writing a will. He would like his half of their joint house to be passed to their daughter.

I understand that they are currently Joint Tenants and my googling has suggested we would need to break this for him to be able to give away his half of the house. However I’m not sure how we can do this when my grandmother isn’t capable of making decisions, I’ve seen that you can apply without the other owners permission if needs be but I’m assuming we would be unable to legally serve the notice on my grandmother?

Thank you for your time and help
Mel

 

[nitram]

Grandfather can sever joint tenancy
https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common .

Grandmother does not have to agree,
There is not a fee to pay to the Land Registry
If you don't know title reference you can find it by paying £3 to view a copy of the title register
https://www.gov.uk/get-information-about-property-and-land/copies-of-deeds .

Take a copy as viewing is time limited

 

[canary]

My Mother in Law severed a joint tenancy when my Father in law had quite advanced dementia and no longer had capacity to understand what was happening, so I know it can be done.
She made a new will leaving her half of the house to her adult children, but FIL did not have the capacity to draw up a new will, so as he died first she inherited it. If she had died before he did, though, her share of the house would have been inherited by the children, FIL would only ever have owned half the house and only that half would have been part of his financial assessment.

BTW - as your grandmother has lost capacity, she wont be able to appoint anyone as POA, so you will, unfortunately, have to apply to the Court of Protection for deputyship instead.

 

[maisiecat]

I am currently in the process of doing this as my husband now lacks legal capacity and if I die before him as joint tenants he would inherit.
I have had to serve him a notice of severance in the presence of a witness and then a form goes to land registry.
I am rewriting my will leaving my share to my family but have arranged for him to have a trust with the income for his lifetime. This is to prevent any issue with the LA as we live in an area where the LA is keen on challenging anything that looks like a deprivation of assets.
Its been fairly straightforward and I have used a trusted solicitor. It was suggested to me when my husband collapsed suddenly last year by a later life financial advisor

 

[Chizz]

Hi,

Where a joint tenancy has been severed so that the two owners become tenants-in-common (instead pof joint tenants) it's not always as straight forward as @canary says.

Recently, there was a case where (i) the joint tenancy was severed by wife (who had capacity) and (ii) the owner who served the notice of severance made a new Will leaving her half to the couple's three children (therefore not leaving anything to the husband co-owner who had dementia). The husband was in a LA care home, had lost capacity, and couldn't change his Will but (iii) wife, who had capacity, and who had changed her Will died first and (iv) the LA applied for a Deputyship Order for husband and this was granted (I don't know why the children didn't get the Deputyship) and (v) as Deputy for husband the LA then made a claim against the Wife's Will under the Provision for Family and Dependent Act 1975, and was awarded a share of the late wife's estate so (vi) the three children didn't get the whole half of the house that their mum owned and (vii) the LA then took the share of the house that the husband with dementia owned, plus the share he was awarded by the claim, to pay for his care home fees to the LA!

Thus the advice received by @maisiecat, is v wise and necessary, to make sure the co-owner spouse who has dementia does get something (and not nothing), as this may well then defeat any claim he (by a PoA or Deputy) might be able to bring against the estate of the other co-owner, should that co-owner die first.

 

[Kevinl]

You get into the whole area of deliberate/willful deprivation of assets, no disrespect to the legal profession and laws in the UK do vary but be careful. K

 

[canary]

Severing a tenancy and leaving your share to someone other than your spouse isnt deprivation of assets as your share was never your spouses. What you do have to be carful of (as in @Chizz 's story) is not completely disinheriting your spouse, because this is what could be challenged.

 

[The Saint]

I am currently in the process of doing this as my husband now lacks legal capacity and if I die before him as joint tenants he would inherit.
I have had to serve him a notice of severance in the presence of a witness and then a form goes to land registry.
I am rewriting my will leaving my share to my family but have arranged for him to have a trust with the income for his lifetime. This is to prevent any issue with the LA as we live in an area where the LA is keen on challenging anything that looks like a deprivation of assets.
Its been fairly straightforward and I have used a trusted solicitor. It was suggested to me when my husband collapsed suddenly last year by a later life financial advisor

What does "have a trust with the income for his lifetime" mean? I couldn't quite understand if the property is split 50/50 then the husband would be guaranteed his half so why would the LA be able to claim a percentage of the deceased wife's share?

 

[maisiecat]

What does "have a trust with the income for his lifetime" mean? I couldn't quite understand if the property is split 50/50 then the husband would be guaranteed his half so why would the LA be able to claim a percentage of the deceased wife's share?

Hi @The Saint , yes my husband definitely still receives his half of the property. The trust means that my half is in trust and he receives a lifetime interest in my share so he receives the interest but the capital is safeguarded for the family.
The LA can claim is the spouse is totally disinherited apparantly. I looked into this very carefully and took advise from Later life financial advisor and a trusted solicitor and am 8 weeks into sorting it out.
I am afraid my experience of the LA has not been positive which is why I have done this because I actually agree with your statement. The LA have done nothing for me why should they be entitled to my share.

 

[Violet Jane]

This piece of legislation doesn't just apply to this type of situation but it seems very unfair in the context of the PWD paying thousands of pounds for his/her care out of his/her own money and half share in the property. It's adding insult to injury. In families without dementia the family inherits everything. In families with dementia not only are the assets of the PWD taken but the assets of the spouse are at risk, which seems to breach the principle that only the assets of PWD are taken for care costs.

I imagine that the children in the case mentioned above couldn't get deputyship because, as beneficiaries, they had a conflict of interest. They were probably lucky to get anything as the LA could have gone for the whole lot given the person's huge care costs.

It makes me think more and more about taking my own life if I develop dementia. Why shouldn't my children inherit my share in the property I own jointly with my husband?

 

[nitram]

I imagine that the children in the case mentioned above couldn't get deputyship because, as beneficiaries, they had a conflict of interest.

In the case mentioned the LA acting as deputy claimed disinheritance, even if there was a different deputy, or LPA, they could be accused of not acting in the PWD's best financial interest and claiming disinheritance.

To add another twist a former wife or former civil partner who has not formed a subsequent marriage or civil partnership is protected.

There are others who are protected, full list of protected people is here

 

[maisiecat]

This piece of legislation doesn't just apply to this type of situation but it seems very unfair in the context of the PWD paying thousands of pounds for his/her care out of his/her own money and half share in the property. It's adding insult to injury. In families without dementia the family inherits everything. In families with dementia not only are the assets of the PWD taken but the assets of the spouse are at risk, which seems to breach the principle that only the assets of PWD are taken for care costs.

I imagine that the children in the case mentioned above couldn't get deputyship because, as beneficiaries, they had a conflict of interest. They were probably lucky to get anything as the LA could have gone for the whole lot given the person's huge care costs.

It makes me think more and more about taking my own life if I develop dementia. Why shouldn't my children inherit my share in the property I own jointly with my husband?

Hi @Violet Jane , I'm afraid its a dirty old business and the more I looked into it the worse it seemed. My husband has Parkinsons and mixed dementia. I looked after him for 15 years with Parkinsons the last 5 years also with dementia. We asked for nothing from the state and paid for things he needed ourselves. When he had a fall and a long hospital admission last year I was told within a week that he wouldn't be coming home as a care package would not be safe.
This is when I began to realise the extent of the asset stripping that is committed by the LA and why I have spent money to try and protect some inheritance. I think it is a national scandal that PWD are treated this way. My brother had cancer and sadly died of it.Everything was funded.

 

[Violet Jane]

People fear cancer but they should fear dementia more as cancer doesn't ruin a family financially unless the person is of working age.

 

[PammieA]

I have been totally confused with this thread, it all sounds so difficult and very unfair, when considering finances. I am at the start of this journey, with my mum rapidly deteriorated, and I am trying to be organised and foreword think 'the what if's'

When you talk about 'joint tenancy' is this on a rented property or an owned property (paid off mortgage)?

Is it the case that if my mum needs a care home in the future, the house needs to be sold to fund the care fees? They have no savings, just their home!
Sorry if I am asking 'silly' questions, but this is all very new to me and I feel I need to be prepared and know what to expect.

 

[Chizz]

I have been totally confused with this thread, it all sounds so difficult and very unfair, when considering finances. I am at the start of this journey, with my mum rapidly deteriorated, and I am trying to be organised and foreword think 'the what if's'

When you talk about 'joint tenancy' is this on a rented property or an owned property (paid off mortgage)?

Hi @PammieA
What I'm posting has nothing to do with rented property. The phrases "joint tenancy" and "tenancy in common" are just legal phrases, nothing to do with any tenancy.
When a property is owned by two (or more) people (and it doesn't matter whether there is a mortgage or not, as the "ownership" can only ever relate to the equity in a property) the joint owners can own it in one of two ways:
(i) either as joint tenants or
(ii) as tenants in common.

Joint tenants jointly own the whole property (or equity if property mortgaged), and on the death of one joint owner, the deceased's interest in the property passes absolutely and automatically to the surviving owner, irrespective of what is in a Will. It passes in this was by reason of the joint tenancy . Thus, in a joint tenancy the joint owners cannot leave their share in a Will to someone else.

Tenants in common own their individual share of the property (or equity) and they can, if they wish, leave their share in a Will to whomsoever they wish.

When a property is purchased the change of ownership from the seller to the buyer has to be registered at H M Land Registry. When applying for the registration the conveyancer or solicitor for the buyers would ask them how they wish to own the property and then register it accordingly.

Once registered, it is possible to change the joint tenancy if required. In a joint tenancy, either of the owners can serve a "notice of severance" on the other owner to change the joint tenancy to a tenancy in common. No consent is required, but the severance has to be registered at H M Land Registry. This is v common in cases of spouses or partners separating or divorcing.
In a tenancy in common to change it to joint tenancy both parties have to agree.

Hope that is now as clear as mud!

 

[Chizz]

Is it the case that if my mum needs a care home in the future, the house needs to be sold to fund the care fees? They have no savings, just their home!
Sorry if I am asking 'silly' questions, but this is all very new to me and I feel I need to be prepared and know what to expect.

Hi @PammieA,
In the case of your mum, if she goes into a care home, then her care costs are means tested. If no-one else is entitled to live in the house, then yes the house will be one of your mum's assets. If her assets, including house, exceed £23,250 in value then she will be a "self funder" and have to pay all her care costs until her assets cme down to or towards £23,250, when you would need to go back to the LA for a change in care costs payments.

 

[Violet Jane]

As has been said above, this thread is about property which is owned rather than rented.

The home of the person with dementia will be disregarded in any local authority financial assessment if the spouse (or certain other categories of people) remains living in the home.

 

[PammieA]

Thank you for your reply, all extremely helpful.