A law firm for life

If you are considering purchasing a new house and doing so along with someone else, one question that your solicitor will ask during the course of the transaction is how you would like to ‘take title’?

Now, if you buy in your sole name, this question won’t come up as there is only one option, you, taking title over the whole property. However, when buying with someone else you will both have options.

The traditional route has been the inclusion of a ‘survivorship destination’. This will read along the lines of “A, and B, equally between them and to the survivor of them”. The effect of the survivorship destination is that as a couple or pair, you own the whole of the property together, without either of you having a specified share of the property. You do not have an automatic half share of the property or any other percentage or fraction split of ownership. It further has the effect that ownership of the whole dwelling automatically passes to the survivor on the first death.

As stated, the survivorship destination has been the traditional route for married couples or more recently civil partners and of course couples in a lifelong relationship, and this provision is still perfectly valid. It does though, limit your options.

Simply taking the title, ‘equally between’ you, whether that be two or more persons allows each of the individual purchasers’ scope to deal with their portion share of the property however they wish. This can be applied, irrespective of the type of relationship the purchasers have with each other so that married couples or civil partners can split ownership.

Taking title is an informed, conscious choice by the purchasers, albeit all purchasers must be in agreement.

The benefit of dividing ownership up into individual portions is that it allows everyone to buy, sell or leave their share in the property to whomever they wish. This may not seem necessarily important in the stereotypical family unit where everything will end up being passed between the parents and then inherited by the children. But we do not live in stereotypical times. Step or blended families are more prevalent as are families without any formal relationship by way of marriage or civil partnership, parents who cohabitate.

Families in which the children do not all share the same two parents can create questions relating to inheritance, particularly if the split is uneven. For example, one parent has one child from a previous relationship and the other has two children from a previous relationship and then, perhaps, they have a child together. Who gets what? The obvious answer may be just to split the property (and the estate) evenly between the children but that may not rest easy with either parent.

Using the survivorship destination, who inherits what, in terms of the children depends entirely on which parent dies second and what they have provided for in their Will, if they have made one at all. As it stands, the law in Scotland on inheritance does not automatically provide for stepchildren whereas all ‘birth’ children do have an automatic claim in their parent’s estate. Even when making a Will, stepchildren must be specified, it is not sufficient to bequeath anything to your ‘children’ using a general term. Can you imagine a situation whereby you, in having the misfortune to pass away first and your interest in your property takes up the bulk of your estate, and therefore what you can pass on, have actually disinherited your own children because there was survivorship destination in the title to your property? Although it may seem rather cynical, not all lifelong partners keep their word on what will happen when the first of them dies. It is common practice for both to make identical Wills, leaving everything to each other and then to all the children. But once the first parent passes away, the survivor can change their Will at any time and in the terms they want. They can leave everything to their own children and make no provision for the children their partner had from a previous relationship.

Of course, at the time of purchasing a property very few of us are trying to anticipate which of us is likely to die first. The making of a Will is an individual exercise even if it is discussed between parents, instructions are only given to a solicitor on an individual basis and can, of course, be changed at any time before the inevitable happens.

This is where the benefit of not using the survivorship comes in. Each person taking title can leave their portion share of the property to whoever they want in their Will, safe in the knowledge that it will not automatically pass to the other parent or person(s) taking title with them, should they be the first to die.

Are you aware of how title is taken in your current property? Do you have a survivorship provision? If you do but would like to consider your options, the title can be amended to remove the survivorship destination should you wish. Contact us here at The McKinstry Company where our solicitors can advise you on both the title of your property as well as a Will.

Join the McKinstry family
Some of our happy clients
  • Really helpful and friendly always replied to calls and emails. Thank you very much for all your help and advice and hard work.

    Mr S, Auchinleck
  • First class throughout 100% better than last time we moved house and used a different firm. Always responded to promptly with appropriate detailed replies. First Class

    Mr N, Ayr
  • Thank you for the support during a difficult time.

    Mrs M, Ayr
  • Every email was timely and actioned quickly. Kirsty and Libby were exceptional to deal with. They kept me informed in a timely manner with the added complication of our sale being carried out whilst we are currently based in America.

    Anon.
  • My emails were always responded to in a timely manner no matter who I was dealing with. Thank you to Nat and Kirsty who helped throughout our move and during some difficult times when lock down was first announced! They have both been great.

    Miss K, Dalry
  • Everything was done extremely professionally.

    Mrs G, Ayr
  • Very happy with the way my case has been dealt with despite working restrictions due covid 19 - thank you. Calls & emails always responded to within reasonable timescale. Very impressed with lawyers and staff I have dealt with during current case and previous divorce case very friendly and efficient.

    Mrs H, Ayr
  • All very prompt, efficient, clear, friendly and personable. Not overwhelming with legal jargon. Many thanks for making the process of setting up a will so straightforward.

    Mrs D, Troon
  • We required our Wills to be amended and that was done without any problems whatsoever.

    Mrs F, Ayr
  • Very business-like and helpful

    Mr M, Ayr
  • I was very impressed with the professionalism shown by all members of staff I had any dealing with. All calls and emails were relevant to the sale of my flat. All questions I had were dealt with at the time. For any further legal matters I will certainly be using The McKinstry Company

    Mr H, Ayr
  • Excellent service most happy with attentiveness and customer service.

    Mr F, Condorrat
  • Nat & Libby efficiently dealt with every question I had.

    Mrs K, Ayr
  • Kirsty understood our weird schedule when we were often 8 hours behind UK time, and simplified things for us by liaising via email. She was extremely approachable and dependable. In Kirsty’s absence, Jodie and Nathaniel would step in and communicate with us, and were very helpful too.

    Mrs N, Ayr
  • Great service and always on hand to answer our questions. Prompt and efficient response.

    Mr H, Ferniegair
  • Questions and communication were answered promptly

    Mr W, Sinclairston
  • Speaking from my own personal experience I was perfectly happy with the service I received. Everything was done to my satisfaction.

    Mrs I, Largs
  • Very efficient, timely and very mannerly on the phone

    Mr McN, Mauchline
  • The service was superb.  Kirsty and team were extremely helpful.

    Mr and Mrs R, Ayr
  • First class service from start till finish. Always there to give help and advice.

    Mr R, Ayr
  • Great service and advice from a good professional company.

    Mr R, Kilmarnock
  • Excellent, very friendly and professional. I will be using you for all my property transactions in the future!

    Mrs S, Godstone
  • My case was handled sensitively and smoothly.

    Mr N, Ayr
  • Everyone concerned in the sale of our property was very efficient and kept us up to date with all happenings.

    D Ferguy, Cookstown
  • Great service.  Would recommend you to others.

    Mr S, Kirkmichael
  • Communication was always available when required. Made me feel confident throughout the process.

    Mr L, Ayr
  • Always replied or phoned back when I needed my questions answered.

    Miss McF, Patna
  • A very prompt and friendly service, a pleasure to deal with.

    Mr R, Aberdeen
  • Robert was very supportive.

    M Carruthers, Kilmarnock.
  • Great, Rebecca was very pleasant to deal with and went out of her way to help with our case

    S Everett, Kilbarchan
  • The solicitor / paralegal I was dealing with was very professional and performed to a high standard. I was very impressed.

    B Ferguson, Methil
  • Local firm, word of mouth good reports.

    K Rooney, Glasgow
  • All queries were dealt with in a prompt and professional manner and I was kept informed of progress as events developed. Thank you very much for making a difficult situation much easier to deal with.

    Mrs McG, Ayr
  • Communication via telephone and email was regular, prompt and comprehensive. All queries and questions were answered with no delays or problems. My experience with the McKinstry Company was pleasant and smooth.

    Mr McK, Ayr
  • My family and I received excellent service from everyone with whom we had contact. The service was of the highest standard and, as I have in the past, I will continue to recommend the company to anyone seeking legal assistance.

    Mrs S, Ayr
  • All emails and calls were dealt with promptly. Very impressed. Very very pleased with service.

    Mr and Mrs H, Hull
  • I enjoy the friendly atmosphere. Very professional.

    Mrs A, Ayr
  • Mr Honeyman was very professional and knowledgeable which made us feel reassured. Very happy with the service and if I needed a solicitor again I would get in touch.

    Mr B, Ardrossan
  • Prompt quick efficient communication.

    Mrs K, Cumnock
  • Ease of making appointments and timescale for completion of business all good.

    Mr & Mrs T, Maybole
  • Gave reassurance and comfort at a stressful time. I felt ten times better after our first meeting and support provided ultimately exceeded my desired outcome.

    Mr N, Saltcoats
  • The supportive way that the advice was provided along with the willingness to fit appointments in with our requirements

    Mr R, Ayr
  • The whole process was handled with upmost professionalism throughout.

    Mr McN, Kilwinning

We’re delighted to welcome you back!

We are open by appointment but these will be restricted to executry and matrimonial clients. Social distancing measures will be in place and please ensure face coverings are worn when entering the office.