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Ask Aston Lawyer Your Own Question
Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10458
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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Will query

Customer Question

I am anxious that when I die (I have incurable cancer and will therefore be unlikely to survive my husband) that my 50% share of the house is left to my two daughters with the caveat that the house cannot be sold or remortgaged by my daughters as long as my husband wished to remain living in the house after my death. Can this be done?

What about any tax issues? Is it better to transfer the house into their names before I die?

Submitted: 2 years ago.
Category: Law
Expert:  Aston Lawyer replied 2 years ago.
Hello and thanks for using Just Answer.
My name is ***** ***** am happy to assist you with your enquiry.
You are best to make a Will, leaving your 50% to your Daughters with the caveat that the property is not sold for however long your Husband wishes to remain living in the property.
This is quite a common clause to be inserted into Wills and is the only way that you can be sure that the property is not sold unless your Husband consents.
Doing it this way, there would be no tax implications for your Daughters- the only tax payable is Inheritance tax which is only payable if yours and your Husband's Estate (including the house) totalled over £650,000.
(If you were to transfer your share during your lifetime, your Daughters would become legal owners and be entitled to demand a sale at any time, and hence would not be in your Husband's best interests. Your Daughters would also be liable for Capital Gains tax as and when the property were sold).
I therefore suggest that you make an appointment to see a local Wills Solicitor for you and your Husband to make Wills.
I hope this assists and answers your question.
Kind Regards
AL
Aston Lawyer and 3 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Would this prevent my daughters' shares being withdrawn under an equity release scheme initiated by my husband?


 


Kind regards


 


J

Expert:  Aston Lawyer replied 2 years ago.

Hi Julie,

If your half of the property were given to your Daughters in your Will, your Solicitor would normally also put a clause in allowing your Husband to "downsize" and use all the proceeds of Sale from your existing property to buy an alternative property if needs required it (eg if your Husband needed a Flat/warden controlled flat).

However, your Husband would not be able to take a Charge out on the property and hence he wouldn't be able to take out an equity release mortgage, as only half of the property would legally belong to him.

I hope this assists.

Kind Regards
AL