When a parent dies and leaves a share of a jointly owned home to their children, but the surviving partner continues to live there, a complex inheritance situation can arise. This is particularly true when the parents were not married.

Understanding Property Ownership

The first step for inheritors is to ascertain how the property was legally held. According to Roman Kubiak, partner and head of private wealth disputes at law firm Hugh James, property can be owned as 'joint tenants' or 'tenants in common'.

If the property was held under a joint tenancy, the deceased's share automatically passes to the surviving co-owner, provided the agreement was not 'severed' – for example, by the preparation of wills by both parties. In such a case, the will's instructions regarding the property share would be superseded.

However, if the property was held as 'tenants in common', each owner has a distinct share that can be willed to heirs. This is the more likely scenario if the deceased's will specifically leaves their half-share to their children. Confirmation can be sought by checking the Land Registry title.

Rights and Restrictions

Owning a share of a property does not automatically grant the inheritors immediate access to that share. The deceased's will might stipulate a 'life interest' for the surviving partner. This grants the partner the right to live in or benefit from the property for their lifetime, often managed through a trust. The capital from that share would then pass to the inheritors upon the partner's death. This life interest takes precedence over any immediate desire by the inheritors to sell their share.

Even without a formal life interest, the surviving partner may resist the inheritors' attempts to claim their share. Disagreements can lead to legal action under the Trusts of Land and Appointment of Trustees Act 1996. Courts have broad discretion in such cases, considering the intentions behind the trust, the purpose of the property's holding, the partner's right to reside, and the interests of any children.

Courts are often hesitant to evict long-term residents, especially elderly individuals, particularly if a life interest or a clear intention for them to remain in the property was established.

Communication and Potential Claims

Early and tactful communication with the surviving partner is advisable to understand their intentions, such as whether they wish to stay in the property or move elsewhere. This can help prevent costly legal disputes.

Even if unmarried, the surviving partner might have grounds to seek financial provision from the deceased's estate under the Inheritance (Provision for Family and Dependants) Act 1975. This is possible if they were financially 'maintained' by the deceased or had been living as a couple for at least two years before the death. Such claims usually have a six-month deadline from probate, although late claims can be permitted.

A pre-existing life interest in the property might impact the partner's claim and their motivation to pursue it.

Understanding 'Residue Funds'

The term 'residue funds' in a will typically refers to all assets remaining in an estate after specific gifts, debts, funeral expenses, taxes, and administrative costs have been settled. It is important for the inheritors to check who benefits from these residue funds and in what proportions, as they may include assets beyond the property itself.