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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.

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