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F E Smith
F E Smith, Advocate
Category: Law
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Experience:  I have been practising for 30 years.
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I am in the UK and have the following question. If a

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Hi I am in the UK and have the following question. If a property (1st and only house) is purchased with cash in joint names by a married couple and one of them passes away, will the debts of the deceased be repaid by affecting the surviving spouse joint assets including said house, and how is this done exactly. 2) If both people pass away and one left debts, will these debts be recovered from the house left to the children (being that's the only asset left to the children)?
JA: Since estate law varies from place to place, can you tell me where this is?
Customer: England.
JA: What documents or supporting evidence do you have?
Customer: not applicable.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: These are theoretical questions. I want to understand the implications of buying jointly our only property in England.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

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are the debts in both names? if not who's? and who is owed?

i

Customer: replied 17 days ago.
Hi the debts are not in both names, they are only my husband's. The money is owed currently to a bank (for a cash loan) and a car finance provider.

It depends whether the house is joint tenants or tenants in common.

I will explain the difference between Joint Tenants and Tenants in Common.

You need the title deed (you don’t need the plan) to the property.

You can get the title deed and the plan quickly and easily by using this link:

https://eservices.landregistry.gov.uk/www/wps/portal/!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/

and you will have to pay 3 pounds for the title deed and 3 pounds for the plan.

You will then have them in minutes if not seconds.

You will see that it has three sections

A             Property Register which describes the property

B             the Proprietorship Register which says who owns it

C             the Charges Register which gives details of mortgages, leases, restrictive covenants and anything else which affects the property.
Have a look in B Proprietorship Register

You are looking for a restriction along the lines of “No disposition by a sole proprietor et cetera et cetera”

That restriction may or may not be in there.  I know it’s rather odd wording.

If the restriction is NOT in there than the property is held as Joint Tenants which means that when one co-owner dies, the deceased persons share passes automatically to the other under the right of survivorship.

Even if there is a will leaving the deceased persons share to someone else, it’s not effective, and the deceased persons share still passes to the survivor, regardless of what the will says.

If the restriction IS in the title deed then the property is held as Tenants in Common which means that when one co-owner dies, the deceased persons share passes in accordance with the terms of their will or, if there is no will, under the Rules of Intestacy.

If the house is not joint tenants but tenants in common, then the deceased’s debts in the deceased’s sole name are payable from the proceeds of the deceased’s estate before the distribution of any proceeds.

If both people pass away, assets go from one person’s estate first and then the other person’s estate when the second person dies.

If they were both killed together, such as in a car crash, then the younger is deemed to have survived the elder.

Debts like this and only normally enforceable for six years under the provisions of the Limitation Act 1980 so you would normally either have the house as joint tenants or in your sole name until six years have gone.

Beware.  If the creditors believe that your husband has put money into the house to avoid the payment of creditors, they can have that transaction set aside and still get the money anyway regardless of whether the house is joint tenants or tenants in common.  Be careful.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

I am happy to answer any specific points arising from this.

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

That only applies to new threads, not this one. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Customer: replied 17 days ago.
Thank you, ***** ***** answers some of my doubts. Apologies perhaps I wasn't clear at the very beginning. We haven't made the purchase as yet. The property in question is a council-owned property (which we currently rent), but we have now right to buy. I do not have the right to buy in sole name. This is because I am on the documents as occupant not named on the tenancy (both me and my son in fact), this is because on the day of signing the rental, I was flying abroad to see my father in hospital so my husband was alone present that day. Sorry for the additional info, it's just to clarify my buying position.All the questions are to understand whether my husband's debts will have a significant impact on the purchase, especially for my son.So effectively if we were to purchase this property, it would be funded entirely by myself but it would still be in joint names. In that respect, in case of death, the creditors could not assume the above, simply because it would be my funds and not my husband's. It would be our first and only home in England.Based on what you said, is the restriction you mention something that can be put in place by a solicitor if/when we make the purchase? I am happy to open another thread if this is considered as a separate question (it's the first time I use the service). Thank you.

You can buy the property jointly as long as you purchase it with someone who has the right to buy who would either be an existing tenant or a successor.  Please note there can only be one succession and if the property was in the name of your husband and he died for example, you would be the successor.  Nobody can succeed after you.

The only time that your husband is debts can have a significant impact on the purchase is if he spends all his money on the house ignoring his creditors Do remember they can always get judgement against him and then have a charge against the house but that would only be against his share.

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