A right to reside clause can be a complicated element of any will – but they’re getting more and more common. If you’re considering using this kind of arrangement in your will, or just want to understand what’s involved, we’ve written this guide to help.
Want to go back to basics on will writing before digging into the complicated stuff here? Check out our article on 5 very good reasons you need to write a will.
What is a right to reside clause?
So, what does right to reside mean? Well, simply put, if you put a clause like this into your will, you’re giving somebody the right to reside in one of your properties. This will usually be for a specific period, for example the rest of the person’s life, or until they remarry.
One of the key differences of a right to reside clause as opposed to simply leaving the property to the resident is that you can specify what happens to the property after the resident dies or chooses not to live there. You can then dictate that the proceeds from the sale of the property be split however you like.
What else can you specify?
Many people will be even more specific in their will than simply saying someone can continue to live in the property. You can specify who’s responsible for the bills and maintenance costs or leave some ringfenced money that can be used for these things as long as the person lives in the property.
You can even include a clause where the property could be sold and a new smaller one bought instead, if downsizing is a sensible option.
When would you need to use a right to reside clause?
A clause like this is commonly used where you own a property and have a partner living with you, but also have other family members who have a claim on that property, such as children from another marriage.
If you leave the house to the children, you end up in a situation where your partner may have to leave the home that they’ve been living in to ensure the will is carried out. Or, if you leave the house to your partner, you’re giving up control of how that asset may end up being used, as they can then leave the property to whoever they like.
So, a right to reside clause in your will solves these issues, by specifying that your partner can continue to live in the house, either until they die, remarry, or a set period of time passes. You can then specify that the house be sold once any of these conditions occur, and the money distributed however you decide.
How do right to reside clauses work in practice?
Because these clauses tend to last for a period of time, generally a trust is created from the will. This specifies a set of trustees who are then responsible for ensuring the wishes set out in the trust are carried out.
Your will would then say that you leave the property itself to the trust, which is then legally governed by the rules you set out. The ultimate beneficiaries of the property (the people who get the money when it’s sold) can’t sell it early, because they don’t legally own it – the trust does. Once the conditions you set out for selling the property are fulfilled, the trust can then sell the property and distribute the benefits according to your wishes.
Trusts in wills are complicated, and it’s important to get them right. Because a trust is legally governed by the rules you set out, it’s absolutely essential to be clear what those are, and have them set out correctly. If not, the trust may be unable to carry out what you’ve asked it to.
If you think your situation means you’ll want to write a right to reside clause in your will, it’s definitely worth speaking to a professional estate planner or will writer. At Face to Face Estate Planning, we take the time to get to know you and your situation, so we can make sure your will is fit for purpose. Get in touch today to find out how we could help with you will.