Making a Will is a crucial step in ensuring that on death your lifelong savings and assets are protected and passed down to the next generation. However, the extent of control a Will can have over your estate will depend on how your assets are owned, and this situation can be particularly complex when it comes to jointly owned assets.

Property owned jointly in England and Wales can be beneficially held under a ‘Joint Tenancy’ or a ‘Tenancy in Common’. While Tenants in Common own distinct shares in a particular asset which usually can be gifted under the terms of a Will, Joint Tenancy property follows the rule of Survivorship and passes outside the control of a Will. On the death of one Joint Tenant, the jointly-owned asset passes to the surviving owner(s) automatically.

One common example of survivorship is in the ownership of the family home: if a property is owned as Joint Tenants and one co-owner passes away, the survivor will inherit the entire property without the need for a Grant of Probate or any significant legal formalities (beyond a simple application to the Land Registry to update the title to the property).

Bank accounts and even shareholdings can be held jointly, and for many people, survivorship can be a useful estate planning tool in ensuring that assets pass automatically on death without the need for complex legal work to be undertaken or the need for a Grant of Probate to be obtained.

However, the danger of survivorship lies in adding third parties – such as family members, carers and friends – onto bank accounts as joint owners in order to help manage them. While it may seem sensible for elderly parents to add their children to their bank accounts to help them pay for care fees and manage their finances, on the death of the parent the entire bank account will pass automatically by survivorship to that child as if it were a gift – rather than under the terms of the parent’s Will.

Where this occurs, these types of ‘gifts’ can give rise to family conflicts and legal challenges – particularly from disappointed siblings and relatives. Although it is possible to prove that the funds should belong to the estate itself rather than the surviving owner (normally by arguing that a particular type of trust has been created), the best approach is always to remove the risk of this occurring altogether.

Assets can be protected in two main ways:

1. Put in place a Lasting Power of Attorney for Property and Financial Affairs

Rather than adding a third party to your bank account, we can assist you in putting in place a specific legal document that will allow those you trust to assist with your accounts while removing the risk that any funds will pass outside of your control when you die.

2. Review your Will regularly

If there is any doubt about the way you own your assets or how they will pass on your death, speak to a Solicitor as soon as possible who can explain your current position and assist you in restructuring your estate if necessary.

If you have any concerns relating to the ownership of your assets please contact a member of the Geldards Private Client team for advice as soon as possible.