If you own a home with your spouse or partner, you may want to achieve two things in your Will: provide a secure home for the person who survives you and make sure your own share of the property eventually benefits your children.
Those wishes can sometimes be accommodated together, but the answer depends on how the property is owned and what arrangements are made in the Will. A straightforward gift of the whole estate to the survivor is not the only option.
This guide explains the distinction between joint ownership and a share you can leave in your Will, how a property trust might work, and the questions to consider before deciding.
What happens when one owner dies?
The first point is the type of beneficial ownership. In England and Wales, two people can own a property as joint tenants or as tenants in common.
If you are beneficial joint tenants, the deceased owner’s interest passes automatically to the surviving joint owner. You cannot leave that interest to your children through your Will while the joint tenancy remains in place.
If you are tenants in common, each person has a defined beneficial share, which may be equal or unequal. Your share can pass under your Will. That creates more options for balancing a surviving partner’s needs with the interests of children or other beneficiaries.
The registered legal owners and the beneficial ownership are not necessarily the same thing. Before drafting, the ownership position needs to be checked rather than assumed.
For a broader overview of Will planning, see our Complete Guide to Making a Will in England and Wales.
Could a Will trust let my partner stay?
Depending on the circumstances, a Will can provide for your share of the property to be held on trust after your death. The trust may give your surviving spouse or partner a right to occupy the home, while identifying children or other beneficiaries to receive the trust property when that right ends.
These arrangements are often described as property protection trusts, life-interest trusts or rights-of-occupation trusts. Those labels are not interchangeable in every situation: the precise legal rights come from the Will and trust wording.
A simple illustration
Imagine a couple who beneficially own their home in equal shares as tenants in common. One person wants their half-share eventually to pass to their children, but does not want their partner to have to move out simply because they have died.
A carefully drafted Will might place the deceased person’s share into a trust. The surviving partner could be given a right to occupy the home, subject to the trust terms, while the deceased person’s share is held for the ultimate beneficiaries.
This is an illustration, not a description of any Brooks Wills client or a guarantee of the outcome. The survivor’s own share remains distinct from the deceased’s trust share.
What can the survivor do?
This is one of the most important drafting decisions. The Will should address practical matters rather than relying on the general label “property trust”.
- Is the right to occupy for life, or does it end on an earlier specified event?
- Can the survivor sell the property and move to a replacement home?
- Can they downsize, and what happens to any unused sale proceeds?
- Who is responsible for insurance, repairs, maintenance and other property costs?
- Who will act as trustees, and how will decisions be made?
- What happens if the survivor moves permanently into alternative accommodation?
- Who receives the trust share when the occupation right ends?
Different families may need different answers. A trust that looks suitable in principle can be impractical if these points are not considered.
Does a property trust guarantee that the children inherit?
No. A trust can define rights over the deceased person’s share and identify eventual beneficiaries, but it cannot guarantee the property’s future value or every outcome. The trust terms, any mortgage, ownership arrangements, possible claims, tax treatment and later events all matter.
The children may ultimately receive the value of the trust share rather than the original property itself, especially if the home is sold and replaced in accordance with the trust.
Nor should this type of trust be marketed as a way to guarantee that the home will be excluded from financial assessments for care. Planning for later-life care costs depends on individual circumstances and the relevant rules at the time. Our separate guide on planning for later-life care costs explains that subject in more detail.
Outright gift or Will trust?
Leaving your estate outright to the survivor can be simpler and may be entirely appropriate. The survivor then generally has greater freedom over assets inherited outright, including the ability to change their own Will.
A trust may provide more defined arrangements for your share and eventual beneficiaries, but adds administration, trustee responsibilities and legal and tax considerations. It can also restrict flexibility unless the terms are carefully designed.
The better option depends on your priorities. Some couples prefer the simplicity of an outright gift. Others want a structured arrangement because of children from an earlier relationship, differing inheritance wishes, or concerns about what happens after the first death.
If you are reviewing Wills as a couple, our guide to mirror Wills may also be useful when considering how each person’s wishes should be recorded.
Joint tenants and severance
If you are joint tenants and want your beneficial share to pass under your Will, it may be necessary to change the form of beneficial ownership to tenants in common. This is often called severance of joint tenancy.
Severance is a separate step from drafting a Will trust. It must be handled properly and the title position checked. Do not assume that including trust wording in a Will has changed how the home is owned.
Tax, administration and suitability
A property trust can affect tax. The treatment depends on the precise rights created, the relationship between the people involved, the value of the estate and other circumstances. A spouse or civil partner is not in exactly the same position as an unmarried partner for all tax purposes.
A trust may also bring reporting, administration or registration obligations after death. Inheritance tax, capital gains tax, the residence nil-rate band and trust registration can all require separate consideration. Tax advantages should not be assumed.
A trust is one option, not a standard add-on that every homeowner needs. Before choosing, consider the property ownership, mortgage or borrowing, ages and needs of those involved, whether there are children from earlier relationships, the survivor’s need to move or downsize, trustee suitability, and the costs and administration of the arrangement.
In some circumstances, straightforward Wills may better reflect the couple’s priorities. In others, a trust may offer a useful balance between occupation rights and the eventual destination of a share.
You can read more about the wider planning options on our estate planning services page.
Frequently asked questions
Can I leave my half of a jointly owned home to my children?
Only if the beneficial ownership and Will arrangements allow your share to pass under your Will. Joint tenants’ interests pass automatically to the survivor; tenants in common can leave their shares by Will.
Will my spouse or partner have to move out?
Not necessarily. A properly drafted trust may give the survivor a right to occupy, subject to its precise terms and the wider ownership position.
Can the survivor sell and buy another property?
Some trusts allow a sale and replacement property. The Will should explain the trustees’ powers and how the trust share is treated.
Can I make the arrangement if we are not married?
Potentially, but the tax and legal position can differ significantly for unmarried partners. Specific advice is important.
Does a property trust protect the house from care fees?
No arrangement should be presented as a guaranteed way to avoid care costs or financial assessments. Planning for later-life care costs depends on individual circumstances and applicable rules.
Do we need to change our home ownership first?
Possibly. If the property is held as beneficial joint tenants, severance may be required for the deceased person’s share to pass under their Will. Ownership should be checked before proceeding.
What should I do next?
Start by confirming how the home is owned and what you want to happen both during the survivor’s lifetime and afterwards. Think about who should act as trustees and whether the survivor may need to move in future.
Brooks Wills provides plain-English Will and estate-planning guidance for families in Poole, Bournemouth, Christchurch and the surrounding area. We can explain the available options and the points that need to be settled before documents are prepared.
Book a consultation to discuss your circumstances.
Simplifying legacies, securing tomorrow.
This article provides general information for England and Wales. The suitability and effects of any Will trust depend on the ownership, trust terms, tax position and individual circumstances. It is not tailored legal or tax advice.
