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NSW Tenants in Common with De Facto - What Happens if Partner Dies?

Discussion in 'Wills and Estate Planning Law Forum' started by Elena, 25 November 2015.

  1. Elena

    Elena Member

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    I own a house as tenants in common in equal shares with my de facto spouse. We have a mortgage on the house. My partner, in his will, wants to give me a life tenancy and then leave his half to his daughter after my death.

    Question: who will go on a title if my partner dies? Who will be responsible for paying the mortgage? Will I need to reapply for a new mortgage?
     
  2. winston wolf

    winston wolf Well-Known Member

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    So he hasn't had the will written yet by the sound of it?

    If he is thinking of doing this with a DIY will kit, I wouldn't as this is too complex.
     
  3. Tim W

    Tim W Lawyer

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    DIY Will Kits are never a good idea. Ever.
    Especially not when you have a (relatively) complex land transaction.

    Although it certainly happens, especially in second or subsequent marriages/ relationships,
    it's not everyday that a couple's principle place of residence is a tenancy in common.
    Tenancy in Common and Joint Tenancy are two quite distinct legal institutions.

    People often get the language wrong, and confuse the two.
    It really, really matters which you are.
    This is because they operate quite differently, and different things happen upon the death of one of the landholders.
     
  4. Elena

    Elena Member

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    We have a draft will done by a lawyer. The house which we would like to give the other partner life tenancy in is mortgaged. We aren't sure how to handle the mortgage. The bank said if the ownership changes, new mortgage application will need to be submitted and reassessed. We need to avoid reassessing the mortgage.

    Could you please tell who legally will go on title instead of disease partner?
    I consulted with a few lawyers and the answers are contradictive.

    Thank you!
     

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