Right to Occupy: Property Rights in a Will

The pressure comes from two directions at once. The partner who shared the house is anxious about being made to leave it; the children are asking when, if ever, they actually inherit. Between them sits a Will clause that reads something like: "I direct that my partner shall have the right to occupy my property for as long as she wishes, and subject thereto I give it to my children." And between them sits you, the executor, with a house you cannot sell and do not quite own.

The clause is a right to occupy (sometimes called a right of residence). The person who died wanted two things at once: a secure home for someone they loved, and the eventual value of the property for someone else, usually their children. The clause delivers both, and your job as executor or trustee is to hold the balance fairly between them.

What the clause grants, in plain English

A right to occupy gives a named person, the occupant, the right to live in a specific property, for life or for a defined period, without making them the owner. Legal ownership passes to the trustees (the people who hold the property under the Will, often the executors), and those who take the property when the right ends are the remaindermen (the beneficiaries entitled to the capital later, typically the children).

It differs from a full life interest trust (where a life tenant is entitled to the income of a whole fund, often alongside the right to live in a property). A right to occupy is narrower: it usually attaches to one property only, and the occupant generally has no right to income from the rest of the estate. The drafting matters: some clauses allow a sale and replacement purchase; some give the occupant income from sale proceeds if they move out; some give nothing once occupation ends. Read the exact words before answering anyone's questions.

The conditions. Most clauses require the occupant to keep the property insured, pay the council tax and routine outgoings, and keep it in reasonable repair. Most also specify when the right ends: on the occupant's death; if they cease to use the property as their main home (often after a stated period, for example six months, or a permanent move into residential care); and, in many Wills made by people in second relationships, if the occupant remarries or cohabits with a new partner. Breach of conditions can also end the right, depending on the wording.

Why people put a right to occupy in their Will

Unmarried partners. Under the law of England and Wales, an unmarried partner has no automatic inheritance rights; the law of intestacy ignores them completely (see Intestacy: Who Inherits Without a Will). A homeowner who wants their partner housed for life, but their own children to inherit the property's value, uses exactly this clause.

Second marriages and blended families. Leaving the house outright to a new spouse risks the children of the first marriage never seeing it. A right to occupy secures the survivor's home without giving away the capital.

Dependent relatives. A sibling, parent or adult child who lives in the property and could not easily rehouse themselves can be given security without inheriting the house.

Keeping the ultimate inheritance intact. Whoever the occupant is, the property's value is preserved for the remaindermen rather than passing through someone else's estate, Will or remarriage.

How it works for Inheritance Tax

Although the clause sounds like a modest personal permission, HMRC normally treats a right of residence under a Will as giving the occupant an interest in possession (a present right to enjoy trust property). Because it arises immediately on death under a Will, it is usually an immediate post-death interest (IPDI), and the occupant is treated for IHT as if they owned the property, or the relevant share of it.

If the occupant is the surviving spouse or civil partner: the unlimited spouse exemption should normally apply, so no IHT is normally payable on the property passing into the trust; tax on the rest of the estate depends on who inherits it. The deceased's unused allowances are generally preserved for transfer. On the occupant's later death, the property value is added to their estate for IHT.

If the occupant is not a spouse (an unmarried partner, sibling or friend): there is no spouse exemption. The property is taxed as part of the deceased's estate on the first death, against the nil rate band (the £325,000 IHT-free allowance, frozen until April 2031). The residence nil rate band is only available where the home passes to direct descendants outright or on certain qualifying trusts; advice is needed where a trust is involved. Because this clause creates an interest in possession for an occupant who is not a direct descendant, the allowance is generally not available on the first death (it may be transferable or arise later depending on the family; take advice). Then, because of the IPDI, the same property value is also counted in the occupant's estate when they die or when the right ends, so for unmarried couples the same house can face IHT twice across the two deaths.

When the right ends during the occupant's lifetime (they move out, remarry or the term expires), the occupant is treated as making a gift of the property value. If the property passes outright to individuals, that is usually a potentially exempt transfer (free of IHT if the occupant survives seven years). Record the date and circumstances carefully and report where required.

Rates as at June 2026: IHT is 40% above the available allowances, or 36% where at least 10% of the taxable part of the estate (broadly, what is left after debts, exemptions and the nil rate band) passes to charity. The allowances are explained in our Inheritance Tax Mitigation factsheet.

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What executors and trustees need to do now

A worked example

Tom and Janet lived together, unmarried, for twenty years in a house owned in Tom's sole name. Tom's Will gives Janet the right to occupy the house for life, ending earlier if she stops living there as her main home for more than six months or marries or cohabits with a new partner, with the house then passing to Tom's two children from his first marriage. On Tom's death his executors value the house, work out the IHT using Tom's nil rate band (the residence nil rate band is not available on the first death because Janet is not a direct descendant), transfer the title to the trustees and register the trust with HMRC. Janet stays in her home, paying the bills and insurance as the Will requires. Nine years later Janet moves permanently into a care home; the right ends, the trustees document the termination, check the tax position, sell the house and divide the proceeds between Tom's children. This is a hypothetical example for illustration only.

Common mistakes

Treating the occupant as a problem to be moved on. The occupant's right is the central provision of the trust, not an obstacle to it. Remaindermen pressuring an occupant, or trustees siding with them, is the fastest route to a dispute.

Treating the occupant as a tenant. There is no tenancy and no rent. The relationship is governed by the Will, not landlord and tenant law.

Nobody insuring the property properly. If the occupant lets the insurance lapse, the remaindermen's inheritance is uninsured. Verify cover every year.

Assuming a mere right to live there means no tax. The arrangement is usually an IPDI, with real IHT consequences on the occupant's death or earlier termination.

Failing to register the trust. Because the occupant simply stays in the house, it rarely occurs to anyone that a trust of land now exists, let alone one HMRC expects to see on its register.

Not documenting the end of the right. Whether it ends by death, remarriage or moving out, the date matters for tax. Record it formally at the time.

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This factsheet is general information for England and Wales, not legal, tax or financial advice. Last reviewed: June 2026.