What is a Declaration of Trust?
A Declaration of Trust, also known as a Deed of Trust, lays out details of ownership on a property that is owned by more than one party. It is drafted when there is no legal agreement in place. It establishes each person’s share and what happens if the property is eventually sold. As a legal document, it can be used as evidence of an arrangement if the property ownership is contested.
Hiring a solicitor to write up the Declaration of Trust is highly recommended. They will follow the legal process and minimise issues if another party is dissatisfied with the arrangement. They understand the legal jargon and consider all beneficial owner’s respective contributions.
In this guide, we’ve gathered everything you need to know about the Declaration of Trust. This includes why it is important and whether they can be overturned.
Why Would You Need a Deed of Trust?
A Declaration of Trust protects your interests and ownership of a property. If there is an issue with the property, the document will state and guard your share. This helps to eliminate any uncertainty should something unexpected happen such as a bereavement. It can also assist with planned scenarios like selling a property.
Arranging a Declaration of Trust whilst buying a property will ensure that the owner’s financial interest in the property is protected from the beginning. It can be used to determine rental income and other financial contributions to be paid. If you are buying a property with a mortgage, your solicitor will assess whether the Declaration will impact the mortgage lender's security.
A Declaration of Trust is usually put in place when the joint owners have contributed to the deposit and are paying the fees such as Stamp Duty. They will also be listed on the title deeds. Detailing beneficial shares of ownership allows the owners to make property management arrangements. This includes proportionate bill payments.
If the property is sold, the Declaration of Trust can detail how much each owner will receive from the sale. It may also contain plans should the owners pass away.
It can be presented in court as a legal document should there be a dispute between owners. It is recommended to have a Declaration of Trust arranged if you are contributing towards the daily management of the property. This includes mortgage repayments and maintenance.
Tenants in Common v Joint Tenants
Most people who take out a Declaration of Trust are doing so either as tenants in common or joint tenants. Before signing any documents, make sure you are aware of how the Deed of Trust impacts your shares in the property.
Tenants in Common
Tenants in common refers to property owners who own unequal shares in the property. This means that the property ownership is not equal.
One of the major differences with tenants in common is that the other owners are not entitled to each other’s shares if one of the owners passes away. This means that the Declaration of Trust will dictate any plans for the transfer of ownership. Owners will be expected to include any beneficiaries in their Will.
Joint Tenants
Joint tenants own an equal portion of a property. This applies whether there are two owners or more.
When filing a Declaration of Trust as a joint tenant, you are forfeiting the beneficiaries for the property listed in your Will. This is because if you pass away, your share of the property is automatically distributed to the other property owners. Even if you have a Will in place with beneficiaries listed, this will be overridden by the Declaration of Trust.
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Can I Write a Declaration of Trust Myself?
You can write a Declaration of Trust yourself, but it’s highly recommended to hire a conveyancer. You should only carry out DIY Conveyancing if you have adequate experience in the field. This is because a Declaration of Trust can lead to serious legal consequences should something go wrong.
You may be tempted to follow an online template. However, hiring a conveyancer or conveyancing solicitor alleviates the pressure and stress. You can also rely on their expertise. They can offer advice for all parties involved, ensuring that there is no conflict.
Why Do Solicitors Need a Declaration of Trust?
Your solicitor will draw up a draft Declaration of Trust. This will outline the parties' intentions and ensure that the beneficial interest split is clearly indicated.
Solicitors can use it as evidence in court if required. If there is conflict among the parties, solicitors can offer advice based on the information contained in the document.
Is it Legally Binding?
The Declaration of Trust is a legally binding document meaning that the owner of the property must adhere to its content. Its job is to protect the owners’ assets, which is crucial in many cases.
It is advised that cohabiting couples have a Deed of Trust in place. This is because their interests have legal protection should the relationship fall apart.
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Can it Be Overturned?
Deed of Trusts can only be overturned by the Family Court during divorce proceedings if there has been a relationship breakdown, according to the Matrimonial Causes Act. This can occur if it is determined that the Declaration of Trust has been declared unfair and seriously detriments a party.
If this happens, then the split of ownership is subject to change. For example, if the Deed was originally a Joint Tenant agreement, the equal ownership may be altered to give one party a higher sum.
One of the first considerations of the court is who has drawn up the existing Declaration of Trust. They are more likely to seriously consider one that has been written and reviewed by an experienced solicitor.
Finding a Conveyancer
The best way to find a conveyancer is by using a comparison site. Compare My Move will connect you with up to 6 licensed conveyancers operating in your area. Fill out our conveyancing comparison form and you can save up to 70% on your conveyancing costs.
It’s crucial that you choose a firm that is regulated to guarantee exceptional customer service. All of Compare My Move’s conveyancing partners are signed up with one of the following regulatory bodies:
- Solicitors Regulation Authority (SRA)
- Council for Licensed Conveyancers (CLC)
- Law Society of Scotland (LSS)
- Law Society of Northern Ireland (LSNI)
- Chartered Institute of Chartered Executives (CILEX)
Another way to choose a conveyancer is by asking friends and family for recommendations. Make sure you read online reviews and carry out thorough research before making your final decision.
