Did you mean to make a mini-Will in your Title?

When you own a house jointly with someone else, you must ask yourself: “Does my title contain a survivorship destination?”

What is a survivorship destination?

When a title is held in the name of more than one individual, there are two main options for the way the ownership is structured.      

• Option 1: the title is held equally between the parties and to their respective executors and assignees;
• Option 2: the title is held equally between the parties and to the survivor of them and to the executors and assignees of the survivor.

A survivorship destination is Option 2.

What are the effects of a survivorship destination?

When your title contains a survivorship destination, it means that on your death, the ownership of your share in the property immediately transfers to the survivor or survivors as named in the title. This happens without there being any formality or the need to prepare any documentation. The surviving joint owner or owners simply obtain ownership of your share in the property without any formality.

It does not matter what you might have put in your Will, the survivorship destination will prevail.

What happens if you divorce?

It was once problematic if you and your spouse or civil partner owned a property with title containing a survivorship destination and you divorced. However, the provisions of the Succession (Scotland) Act 2016 mean that when you divorce, any survivorship destination is automatically removed from the title.

Survivorship destinations and “modern” families

Survivorship destinations can be problematic for the children where their respective parents have re-married. When one of these parents dies, the survivorship destination automatically transfers the title to the survivor. That means the children of the deceased parent would have no entitlement to the property when their step-parent ultimately dies unless they are left a share of this in the step-parent’s Will.

How can you change the survivorship destination?

A survivorship destination is a special destination. There is a simple and straightforward process to “evacuate” a special destination. To do this, both parties agree to the evacuation and complete and sign a document. Once it has been completed and registered, the title will no longer contain the survivorship destination. Thereafter, each party’s share in the estate will fall to those entitled to inherit it in accordance with the Law of Succession or as specified in their Will.

Where can you find out if your title contains a survivorship destination?

Your first port of call is your solicitor. Your solicitor can review the title to your property and let you know if it contains a survivorship destination. If it does, they can then discuss what can then be done.

It also makes sense to review your Will at the same time you review your title. This means there will be no potential conflict between the two.

Specialist property solicitors in North Berwick and Dunbar, East Lothian

Our solicitors have many years of experience advising our clients on all aspects of property and property law. We also deal with Wills, Powers of Attorney andestate planning. If you would like to find out if you have a survivorship destination in your title and how it works in conjunction with your Will, please simply get in touch with us.