Probate Disputes: When Children Don't Fly The Nest

• Published date: 23 March 2021
• Subject Matter: Family and Matrimonial, Wills/ Intestacy/ Estate Planning
• Law Firm: Birketts
• Author: Jenny Howe and Bethany Kent

In most cases, a testator's property will represent a significant proportion of their estate. However, problems can arise if the deceased had allowed a child to live in the property up until their death. While the child living in the property may want to continue to do so and may not have the means to move out, other children or beneficiaries of the Estate will want to sell the property in order to access their inheritance.

With the chances of getting on to the property ladder becoming more remote for many, and children returning to their parents' home after further education, as well as the effects of the pandemic on the job market, many adults are simply unable to afford to move out. Many parents fail to consider the effects their death may have on this arrangement.

It is far easier to be clear about and to record your intentions during your lifetime than it is to try and unpick a situation at a later stage, particularly if those left to do so are your family members. Making clear agreements and recording them accurately can be the difference between leaving the stress and uncertainty of a bitter dispute on one hand, and the clarity and certainty of a well-organised estate on the other.

How can parents prevent a dispute over their property occurring?

The most effective way of preventing the majority of probate disputes is to draft an effective will, clearly stating your intentions. This can be bolstered with a letter of wishes if necessary, anticipating any particular decisions which you believe might cause potential concern or upset. You should clearly state what should happen to your property when you pass away, and refer to any evidence that may support this statement, such as an email exchange between you and your child demonstrating any shared intentions or agreement. In a bid to avoid any future disputes, you should aim to include as much detail as possible. For example, you may have decided that you want your child to remain in the property for the duration of their life, known as a 'lifetime interest'. Alternatively, you might allow them to remain in the property for a fixed period of time after your death, creating some space so that they don't feel pressured to leave the house in the midst of a bereavement.

Lifetime interest explained

A lifetime interest is an effective way of allowing a person the right to remain in a property for the duration of their life, or contingent on the occurrence of a future event, such as their marriage. Lifetime...