British consumers increased their borrowing by less than expected in July in a possible sign of caution among households as borrowing costs rise, Bank of England data showed on Wednesday.
However, I have many questions. For example, what happens if, after we’re accepted for a mortgage, one of us is no longer able to meet the financial obligations? Who would be responsible for the other half of the costs if one of us lost our job? Also, what about future partners? Would our spouses become partial owners of the property? Would that affect our ownership percentages?
I also worry about the potential inheritance of the house, as my parents are lending me part of the money. Who would inherit the property and what would be our respective obligations if anything happened to either of us?
Nick Mann, partner at Seddons, a solicitor, says it’s always good to think about how to purchase a property and the practicalities around it, so everyone is aware of the potential circumstances that could change before, during or after the transaction. In this situation, you should have a trust deed drawn up with your friend to take into consideration how you should hold the property, payments of expenses including the mortgage, how profits and losses are to be split and provisions for the re-sale of the property.
The trust deed doesn’t have to be entered into until the point of completion, but it’s best to agree on these aspects before exchange to prevent any issues between the parties, as the exchange of contracts is the point at which any property purchase is legally binding.
In respect to financial obligations, it would be prudent to go back to either the mortgage broker or lender, to notify them of the change in circumstance, and seek alternative options if one party can no longer pay. It could be that a guarantor could be added to the application to support the mortgage. If either of you loses your job, and you didn’t have the mortgage protection payment insurance offered by the lender in place, then the mortgage payments would still be payable as the mortgage would bind both parties so they would be jointly and severally liable. Any future partners or spouses occupying the property wouldn’t have any property rights if the parties were to hold as tenants in common with a trust deed.
We have seen an increase in gifted deposits, given the historic rising prices of properties, so it’s not uncommon for a family member to provide financial assistance. The best way to safeguard any contributions is to ensure the property is held as tenants in common, with a trust deed. This means the beneficial ownership of the property would be held in either equal or unequal shares (accounting for any deposits or contributions).
As tenants in common, if one of you should die, your share in the property will form part of your estate and will be dealt with in accordance with the provisions of your will (if you have made one, or under the intestacy rules if you have not). Unlike a joint tenancy, the share does not automatically pass to the survivor, so that would prevent any issues with inheritance.
Each individual circumstance for purchasing properties is different so it’s best to notify your solicitor of any concerns or potential issues you may have so they can provide the correct advice and ensure you are properly advised in respect of the legal position.
Stamp duty and inheritance tax issues should also be taken into consideration and specialist advice sought in those areas if required.
Should I give in to my family and write a will?
I am a married 48-year-old man with two grown-up boys. I rarely talk about money, if at all, and find the subject quite uncomfortable. I am being pestered by my wife and friends to write a will and set up an lasting power of attorney, as it is in the interests of my own young family. How do I even begin? Should I involve my family? Do I need a lawyer?
Ryan Smith, wealth planner at Kingswood, a financial adviser, says your wife and friends are correct to pester. Wills and lasting powers of attorney (there are two kinds of LPAs — health and welfare and property and financial affairs) are legal documents we recommend any client should have in place. Both differ, but are handy to have in the event that the worst happens; easing the pressure on your loved ones in sorting out your estate and finances or making decisions on your behalf.
If somebody dies intestate (without a will) this means the distribution and administration of the estate takes place in a much more rigid way, prescribed by the law. For your circumstances, in particular, if something happened to you, the first £270,000 of your estate would go to your wife and any balance within your estate would be split 50/50 between your wife and your sons.
This could possibly reflect your wishes. But to avoid any doubt and ensure there are no inheritance disputes you should make specific bequests, often with jewellery or items with sentimental value. You can also manage your inheritance tax position better through the use of a will, especially in the instance of both you and your wife passing away simultaneously or in close succession. While your boys are grown up, a will would make it clear who would take over guardianship for younger families.
For lasting powers of attorney, establishing these prevents you and your family from falling into a “legal limbo” where no one is able to make decisions on your behalf if you were to ever be incapable of this. People are living longer and more people are losing their mental capacity in later life, so it’s important to have an LPA to protect you in the event of sudden health issues where your ability to make decisions for yourself is impaired.
You are able to set these up online via the gov.uk website, but it is always recommended to take advice, especially if you do not feel well versed in this area, or if your scenario is a little more complex. Often, people nominate their spouse as the first decision maker, and the grown children (over 18) as the backups. Having an LPA in place prior to any potential loss of capacity will save you and your family a large amount of stress (and money) trying to sort out control of your assets and the ability to make decisions through the court. Not having an LPA will result in you needing to go through the court of protection and apply for a deputyship, which can often take months and cost more than setting up LPAs earlier in life.
Please take legal advice and ensure your wife is involved in these decisions, as you may wish to establish these documents jointly. The rules regarding LPAs differ across the UK so you will need to tailor it to your location.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
This article was written by Lucy Warwick-Ching from The Financial Times and was legally licensed through the DiveMarketplace by Industry Dive. Please direct all licensing questions to legal@industrydive.com.