Q&As

In a situation where the Will of a person holding property as a tenant in common with their spouse leaves their interest to children with a right for the spouse to reside in the property, is it correct that the legal estate of the property should be transferred to the spouse and children with a Form B restriction?

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Published on LexisPSL on 03/03/2016

The following Private Client Q&A provides comprehensive and up to date legal information covering:

  • In a situation where the Will of a person holding property as a tenant in common with their spouse leaves their interest to children with a right for the spouse to reside in the property, is it correct that the legal estate of the property should be transferred to the spouse and children with a Form B restriction?
  • Co-ownership
  • Transfer of interest to beneficiaries
  • Protection by way of restriction
  • Form B restriction
  • Form C restriction

In a situation where the Will of a person holding property as a tenant in common with their spouse leaves their interest to children with a right for the spouse to reside in the property, is it correct that the legal estate of the property should be transferred to the spouse and children with a Form B restriction?

In these circumstances, the trustees should transfer the deceased co-owner’s share of the legal and beneficial estate to the ultimate beneficiaries, subject to the lifetime trust of the surviving spouse in the Will.

Co-ownership

Where two or more people together own real property, they hold it under a trust of land. Where property is held on a trust of land, the legal estate and equitable estate are separate. The legal estate must be held by the co-owners as joint tenants. See section 1 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). The beneficial interest in the property can, however, be held by the co-owners as tenants in common. On this point, see also Practice Notes: Buying property from a sole surviving co-owner and Severance of a joint tenancy.

Transfer of interest to beneficiaries

Where the deceased held a beneficial interest as tenant in common and has made provision for that interest to be transferred to his children by way of his Will, then it is possible

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