When a property is purchased in Scotland by two, or more people you will be given a choice on how you wish to take title. Title can be held in one of two ways. The first option is for your property to be held in pro indiviso shares and the second is for title to be held in survivorship.
Owning a property in pro indiviso shares means that, on the death of one party, their share will simply become part of their estate. Their estate (including their share of the property) will then be distributed in accordance with their Will. If they do not have a Will, title to the property will pass to whoever is entitled to it under the laws of intestacy. The intestacy rules in Scotland are set out by the Succession (Scotland) Act 1964 and although it has been amended slightly over the years the legislation is now 60 years old.
If title to the property contains a Survivorship Destination then on the death of an owner, their share will pass automatically to the surviving owner(s) immediately. Title will pass automatically without the requirement for any further legal processes to facilitate the transfer.
Do I have a survivorship destination in my title?
The easiest way to check if you have a survivorship destination is to look at the title deeds for your property. If title is held “equally between x and y and to the survivor of them” then title to your property is held in survivorship
As noted above, the advantage of having a survivorship destination is simply the fact that title passes to the survivor automatically and immediately on death. If you do not have any other significant assets, then this can make the administration of the deceased person’s estate much more straightforward than it otherwise may have been.
The problems with having a survivorship destination that you are unaware of.
A survivorship destination will override any instructions relating to the property contained in your Will. If your wishes in relation to the property change in the future you cannot simply update your Will to reflect this. If you are unaware of a survivorship destination and decide to update your Will to specifically deal with your share of the property, then this bequest will ultimately fail as the survivorship destination will always take precedence.
You may also decide in the future that you want to include Trust provision in your Will due to the need to protect the family home for disabled beneficiaries, or your share from care costs. If your title contains a survivorship destination then it is not possible to place your share of the property in Trust through your Will.
What if I decide that I no longer wish to have a survivorship destination in my title?
As with everything in life there are pros and cons to how title to your property is held. If you have taken title in Survivorship and this no longer suits your circumstances, then there is a way to alter this and convert your ownership to separate pro indiviso shares. Your solicitor can draft an evacuation document on your behalf, which all parties on the title must sign, This process is commonly referred to as evacuating a survivorship destination. Completing this process will remove the survivorship destination from your title. With the survivorship destination removed you will now be able to express your wishes for your share in your Will as it will no longer pass automatically.
We can help!
Are you unsure of how title to your property is held? Our team of Solicitors can check this for you and offer tailored advice based on your specific requirements. We can help you decide based on your circumstances if an evacuation would be beneficial. This may also be an appropriate time to review your circumstances as a whole and update your existing, or draft a new Will.
This is not designed to be a definitive guide and we would always advise you to seek bespoke detailed advice from your solicitor. Please do not hesitate to contact us if this article has raised any questions, or if you would like to discuss your affairs generally. You can call us on 01721 720131.
