Dealing with Real Estate in a Will

“I have a private Property and HDB in joint names with my husband. How can I transfer my share to my two children in our Wills?”

This was the question we were asked earlier this week.

Simple Answer

If both you and your husband make the usual “standard” Will that couples with children make (see: https://ezwills.com.sg/standard-wills/) your children can inherit the properties that way.

In a ‘standard’ Will made by couples with children the Wills leave the entire estate to the other spouse.  A ‘standard’ Will goes on to say if the spouse has already passed away the entire estate is given to their children equally.

If both of you make the same ‘standard’ Will then, on the death of both, the whole estate is given to the children. That way both properties (and everything else) end up with the children. This stills happens even if both properties are not specifically mentioned in the Wills.

Jointly owned property

Real estate can held jointly either as Joint Tenants or Tenants in common.

Consider property held in Joint tenancy like a cake that has not been cut and tenancy in common like a cake that has been cut. A cake can be cut equally into 2 halves or unequally (2/3 and 1/3, 60/40 etc).

Once you cut a cake you can’t ‘uncut’ it. Once you cut a cake you cannot ‘uncut’ it.

With a property owned by 2 joint tenants each has an equal right to the whole property whereas a tenant in common only has the right to that ‘cut’ portion of the property.

Most importantly a surviving joint tenant becomes solely entitled to the property on the death of the other joint tenant.

Joint tenant’s right of survivorship

The right of survivorship of a joint tenant means a property held in joint tenancy doesn’t form part of your estate.

A Will that gives your interest in a property owned in joint tenancy is ineffective. The right of survivorship “over-rides” the Will.

Married couples usually hold properties as joint tenants. It is extremely rare for couples to hold properties as tenants in common.

What happens after both joint tenants die?

If A and B own a property as joint tenants and A dies then B owns the property solely.

On B’s death the property is then dealt with as part of B’s estate under B’s Will.

As real estate is commonly the largest asset of a Singaporean’s estate making a standard Will (see: https://ezwills.com.sg/standard-wills/) makes even more sense.

Leaving something for the children

If you want you can always add clauses that give fixed sums of money to each child before leaving everything else to your spouse.

However, making a Will that specifically gives your real estate to your children is useless if your spouse is a joint tenant (which usually is the case anyway).

Why make a Will

Making a Will is about providing for your loved ones. It’s about taking care of people.

Making a Will is much less about dividing up your worldly possessions.

Do not treat the will making process like a garage sale. In a garage sale you’re getting rid of unwanted stuff to strangers.

Concentrating on your assets first in your Will loses focus of the reason you are making your Will – ie providing for loved ones.

Stop worrying about what happens to this or that asset that you do not list it in your Will.  Instead, focus on the needs of loved ones.

 

4 May 2019

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