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Tenants in Common

I have spent most of the evening researching, and think I have got things straight in my head, but hope that someone can confirm my understanding.

Mum suffered from dementia, and spent her last six years in a home as Dad and family unable to care for her. Dad was advised to change the ownership of their home to Tenants in Common, and he made a Will leaving his half of the property to myself and my brother in the event of his death. Due to her dementia, Mum was unable to make a Will. Dad also took out an EPA as Mum was unable to manage her affairs.

Mum passed away last year, and as she had no assets to speak of, we didn't do anything about the house. In fact, we understood that Dad would automatically inherit her share of the house.

Dad now wants to sell up, and the solicitor has asked for the Grant of Probate, which we don't have.

It now looks as though Dad (as spouse) needs to apply for Letters of Administration, and as Mum died intestate her share of the house will pass to him as the value is less than £250K.

If my understanding of this is correct, how quickly can this be done? I can see that the Probate Office contact you in approx 10 days, but does anyone know how long the process will take from start to finish?

I assume that there is no way round this?

Just concerned that as he is in the process of buying and selling he won't want things to be delayed. Guess we should have thought about this earlier, but we honestly thought that the Death certificate would be sufficient to change the name with Land Registry.

Can anyone confirm my understanding or otherwise?

Thanks in advance

Comments

  • Land_Registry
    Land_Registry Posts: 6,056 Organisation Representative
    Part of the Furniture 1,000 Posts Name Dropper
    If the property is registered in England & Wales then it is the tenants in common aspect which needs to be dealt with, hence the additional requirements. A Death certificate would only have been sufficient if the property had been held as joint tenants.

    As the property was held as tenants in common there should be what is known as a form A restriction on the title - you can read about the different types of ownership and the effect of each in our Public Guide 18

    As your father wishes to sell the property the sale will be caught by the restriction and he will have to either appoint someone as a trustee for your late mother's share in the property or show how her share has passed to him and he can deal with the property.

    I suspect this is why the solicitor has asked for letters of administration, which will show that your father can deal with your late mother's estate. Letters of Administration are usually applied for where no will existed with a Probate being the one issued where a will did exist.

    We have no knowledge of how long the process for obtaining Letters of Administration may take I am afraid.
    Official Company Representative
    I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"
  • CAE
    CAE Posts: 644 Forumite
    Thank you for the useful and clear information. Have completed the forms and sent them off. Hope it doesn't take too long as don't want to delay sale of property. As there were no other assets, apart from share of bank account, this was easy to do.
  • McKneff
    McKneff Posts: 38,857 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    I just want to say one little thing, you said 'your mum had no assets'
    indeed she did, as the house was 'tennants in common' she had half a house. Had the house been left as joint tennants, the house would have just gone to your father automatically which would probably have been easier.

    And I'm sorry you lost your mam.
    make the most of it, we are only here for the weekend.
    and we will never, ever return.
  • CAE
    CAE Posts: 644 Forumite
    Thanks McKneff.

    You are quite right, Mum did have half of the house as an asset. I should probably have said that the only reason we need Letters of Administration is because of the house, and being Tenants in common. Her other assets, being a share of the joint bank account passed automatically to Dad.

    And yes, would have been easier as joint tenants. Have found out so much about this subject over the past week!
  • securityguy
    securityguy Posts: 2,464 Forumite
    Part of the Furniture 1,000 Posts Combo Breaker
    edited 6 March 2013 am31 7:59AM
    CAE wrote: »
    And yes, would have been easier as joint tenants. Have found out so much about this subject over the past week!

    One thing I find really annoying about the "advice" floating around amongst the older generation (both my parents and my in-laws are caught up in it) is the prevalence of complex schemes which purport to avoid care home fees, inheritance tax or both.

    Firstly, they often don't work: like a lot of received wisdom passed from hand to hand without professional, or up to date advice, they rely on clever-clever reading of the legislation which is trumped by rules that focus on intent rather than form.

    Secondly, they address problems that affect a minority (care homes, IHT) versus a majority (a decent standard of living in retirement).

    Thirdly, the complexity often arises just at a point which is both difficult and inevitable (the death of the first partner). Wrapping assets up in trusts that need to be unwound, changing tenancy to complicate inheritance: all of these things mean that action has to be taken when the first spouse dies, rather than the far simpler situation of it all passing to the survivor and the problems not arising until after both have died.

    Fourthly, they address a problem which is nice to have, and should not in any way affect people's own behaviour. If your estate has to pay IHT, you've left your children more than three, for a married couple probably more than six, hundred grand, and even after paying full IHT it's still a great deal of money for them. Making your own lives complex in order to get them an extra fifty grand seems entirely misguided.

    Fifthly, the idea that you are better off in council-provided care rather than private care just so long as you keep your house is fundamentally wrong: shouldn't people's assets be used to buy them a better standard of living while alive, rather than their children a better standard of living afterwards? After all, one way to save paying a mortgage or rent is to make yourself homeless and be housed in council-funded B&B, but few people regard that as a sensible way to live if they can afford a house.

    Sixthly, as I have shouted at my parents and in-laws, as executor or attorney I don't want to deal with unwinding some complex scheme that a bloke told them about (and another bloke got a fat commission to set up), just in order to save a few thousand of IHT. One relative whose executor, and potential attorney, I am has been sold some mind-bending loan trust scheme to shelter the interest on their assets from IHT. With interest rates at 1% and IHT at 40% means a saving of 0.4% per annum on the small amount they might, possibly, have over the threshold, in exchange for immense complexity. I am the residual beneficiary, so I've pleaded with them to stop all the nonsense and let the estate pay the IHT, because I do not want the hassle for a small saving (which, allowing for the set-up costs, may not even be a saving). If they do in fact end up in care, actually laying hands on the cash required to fund it will be complex, too, and again will fall to me. But no, apparently I should be grateful.

    Please, as you get older: keep your affairs simple, and please stop worrying about IHT and maximising your children's inheritance rather than your own interests and the interests of simplicity.
  • getmore4less
    getmore4less Posts: 46,882 Forumite
    Part of the Furniture 10,000 Posts Name Dropper I've helped Parliament
    To answer the actual question.

    If you swear the oath at a solicitors(fixed fee £5) it should only take around 3-6 weeks from sending of the forms(PA1 IHT205).

    if you plan to swear at the courts it can take longer depending how convenient and busy they are.
  • daska
    daska Posts: 6,212 Forumite
    Part of the Furniture Combo Breaker
    Have to say it's been a doddle sorting out Mum's estate and putting it in a Trust for the benefit of Dad, my sister and our children (5). Cost us £1500. It'll cost about the same when Dad shuffles off. But it's not to save IHT or care home fees, there are other considerations that can influence this decision. In our case it's that several of us have, variously, an inherited genetic condition/ learning difficulties/ other disabilities. The Trust will allow us to direct support to whoever is in most need at any one time. The Trust won't need to be unwound on Dad's death, we'll do the same with his estate. The administration, apart from getting the solicitor to calculate the tax on the relevant anniversaries, is very simple. So for us it's a no-brainer.
    Eat food. Not too much. Mostly plants - Michael Pollan
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