As tenants in common, could we specify that our children inherit our property?

‘Property under a joint tenancy automatically passes to the surviving joint tenant(s) on the death of the other(s).’ Photograph: monkeybusinessimages/Getty Images/iStockphoto

Q My husband and I are considering severing our joint tenancy and becoming tenants in common. We would be doing this to protect our children’s inheritance. I believe that by doing this we can give our shares of the property to our daughters, but remain in it should either of us die. I believe this is “giving a life interest”. At the moment, being joint tenants, we have made a joint will, leaving the property to whoever survives the other, and in the event of both our deaths, to our children. There are also stipulations that each of our six grandchildren receives £10,000 when we both die, providing there is that amount left in our estate.

If we become tenants in common, do we have to update our existing will to mention giving a life interest to the surviving spouse and leaving our half of the estate to our daughters and grandchildren, as in our existing will? SMF

A Yes, you will have to draw up new wills if you decide to own your home as tenants in common by severing your joint tenancy. You will also need to draw up new wills if you really do have a joint will, as there is supposed to be no such thing under UK law. You have to have a will each, but they can “mirror” each other, so that the provisions in them are essentially identical.

It is not possible to stipulate in a will who gets property that is jointly owned on the first death of one of the joint tenants. That’s because property under a joint tenancy automatically passes to the surviving joint tenant(s) on the death of the other(s). This is not the case if you own a property as tenants in common, where you can specify in your will who gets your share of the house on your death. However, simply leaving your share to your daughters does not in itself create a “life interest” in the property for your spouse. To make sure that your spouse can remain in the house until his or her death, the will has to say that you want that to be the case.

At the moment, because you are joint tenants, when one of you dies the surviving spouse will get to live in the property until his or her death automatically as sole owner of it, without the will having to make such a stipulation. On his or her death, your daughters will receive it, assuming your spouse doesn’t change his or her will after your death and leave the property to someone else. If that’s what you are worried about, becoming tenants in common will indeed enable you to protect at least your share of your children’s inheritance; provided, of course, that you update your will.