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Joint tenancy or Tenants in Common

Often when a couple purchase their principal place of residence, they do so as joint tenants.  This means they jointly own the whole of the property and when the first of the couple dies, the property passes to the survivor. There is no need for an application for Probate when the first person dies, unless there are other assets held by the deceased which warrant such an application.

However, if it happens that one of the spouses goes into care and a RAD is payable then often it is beneficial to sever the joint tenancy.  This means that the principal place of residence continues to be held jointly by the couple.  However on the death of the first of the couple, the half interest in the property owned by that person passes under the terms of his or her Will (and no automatically to the surviving joint tenant).  By severing the joint tenancy, it removes the risk that if the first of the couple to die is the spouse living in the principal place of residence (ie not the spouse living in care), that the property does not pass to the survivor in care.  The spouse not in care can leave the share of the property to whomever he or she wishes.  By leaving the interest in the property to someone else (say the children) the asset base of the surviving spouse in care shall not change and therefore the obligations for payments to the care provider shall not change.

There are important considerations when a person goes into care.  One consideration is the possible benefit of severing a joint tenancy.  If the joint tenancy is severed, then the Will of the spouse not in care should be changed to provide that his or her share of the property shall not pass to the spouse in care.  It is a difficult time, however there can be advantages if the correct decisions are made

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