David and his wife own their home as ‘joint tenants’ and are concerned that may cause problems when one of them passes. They are seeking clarification from estate planning lawyer Rod Cunich.
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Q. David
My wife and I own our own home outright, but we are 50/50 ‘joint tenants’. As I understand it, this means that the title to half of the property does not automatically pass to the other joint tenant, if one of the joint tenants dies. Then it would become part of the estate of the deceased tenant, subject to that tenant’s will. Whereas ownership under ‘tenants in common’ means that each tenant owns all of the property jointly with the other tenant and this ownership remains valid if one tenant dies. Is this correct?
If so, should we change our home ownership status to tenants in common? If we did, would we be liable for stamp duty?
A. If you reverse the terminology, then your descriptions are correct. That is, if held as ‘joint tenants’, the title passes to the co-owner automatically on death. If held as ‘tenants in common’, on death your share passes to your deceased estate and is managed by the terms of your will.
It is relatively easy and inexpensive to change from one to the other if the property is 50/50. Which best suits you depends on your family and financial circumstances. You need to seek advice from an estate planning lawyer who has full knowledge of your circumstances before advice can be given as the answer is very individualistic.
Rod Cunich is a lawyer and author with more than 30 years’ experience who specialises in estate planning. If you have a question for Rod, simply email it to [email protected]. His book, Understanding Wills and Estate Planning, has recently been updated and is available from all good bookshops.
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