I am retired, but I recently remarried. My husband owns a house and I own a flat, but we would like to sell them both and buy something which is a bit easier to look after. I already have children, and I want to make sure that they don’t lose out if something should happen to me or my husband. What is the position?

When two people decide to buy a property together, they can do so either as “joint tenants” or “tenants in common”.

As joint tenants both own the entire property, rather than a defined share. If one tenant dies, the surviving owner ends up as the sole proprietor, which can effectively disinherit the children of the spouse who dies first.

Tenancies in common are often used to help with tax planning, where a couple already have grown-up children or where the couple marry or cohabit later in life. Tenants in common will each own a defined share of the property (usually, but not necessarily, 50 per cent).

When one tenant in common dies, his or her share stays part of the estate for inheritance purposes and that share passes to the person named in the will. If there is no will, the share passes to the person who inherits under the rules of intestacy.

In general, it is usually better to choose a tenancy in common unless (as is often the case) there is a good reason to go for a joint tenancy. However, before you buy the property, you will need to enter into a trust deed that clearly states the share that each of you will own and such matters as who can live in the property. It is also important for each of you to make new wills to decide what will happen to the property if one of you dies.

The writer is a barrister at Tanfield Chambers. E-mail your questions to:

brief.encounter@thetimes.co.uk

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