Unusual Executor of will Query re tenancy in common

MrsGrace

There was no trust set up - the property was transferred into both names 12 years ago and that was it. There may have been an implied trust but nothing explicit.

getmore4less

I think they are trying to intimidate, bottom line is you could have done nothing.

if no other assets what is the incentive?
(i understand loyalty respect duty etc.)

getmore4less

There is the added complication of cgt for SIL

getmore4less

What's the real time line?

MrsGrace

getmore4less wrote: »

There is the added complication of cgt for SIL

A good point - and not an area I know a huge amount about but they have not discussed if there is anyhting re her tax affairs that mean certain timescales etc would be benefical.

MrsGrace

getmore4less wrote: »

What's the real time line?

Since death?

Death 21June
Funeral 8th July
Probate Oath Signed 4th August

It took us 2 weeks to find the will in the hoard. We are gradually clearing through rooms for property belonging to local charities etc and binning stuff as we go.

getmore4less

I was thinking back to original ownership especially as one of the beneficiaries was already dead and there was a life interest.

Land_Registry

Thank you for clarifying the registered ownership. And I also assume that there is a restriction on the title, known as a form A restriction, which many refer to as the evidence that the property was held as tenants in common. You mentioned this in a much earlier post.

I shall try to explain things from purely a registration perspective as I cannot give legal advice and to understand how the legal and beneficial ownership relate to one another and how probate law works is something you would have to get legal advice on.

Where you have joint registered owners then the sole surviving registered proprietor can still deal with the property, namely Transfer it, even where they held it as tenants in common. Our online guidance on joint property ownership explains some of the background to how such things are handled from a registration perspective.

Others have mentioned that the SIL cannot do anything without the executor's consent but from a registration perspective that is not the case. Whilst the form A restriction indicates that there is a 'trust' involved the details behind it i.e. what is in the will/trust/agreement are not registered.

For example, the SIL could Transfer the property for no monies e.g. gift it to someone or she could appoint someone to act with her in any sale i.e. to take receipt of any capital monies (purchase price) as referred to in the form A restriction.

It does not sound as if she is likely to 'gift' the property to anyone else as the intention is to sell. To sell she would have to deal with the form A restriction which essentially means she cannot take receipt of the capital monies on her own, hence the need to appoint a second person to act with her. She may or may not be aware of this of course but as far as I am aware it does not, as in your example, have to be your FIL's executor.

You mentioned in your earlier posts that the SIL is well aware that the proceeds of sale have to be split and if she does that in accordance with any trust/will/agreement then from a legal perspective there may be nothing you can challenge her on.

The law surrounding how the beneficial ownership is handled can be very complex and the will/trusts/agreement as well as probate all come into play. However dealing with the legal ownership can be quite straightforward and in the vast majority of cases is handled in a way which satisfies everyone. The law though is there to protect interested and also unregistered parties.

So taking your specific scenario as explained to date it is probably very likely that the SIL could sell the property by appointing someone to act with her on the sale. I suspect many would appoint the FIL's executor but as mentioned I do not believe that is a legal requirement.

Any legal challenge, if then required, would be with regards what happened next i.e. is any split in accordance with the will/trust/agreement or not.

Clearly there are other issues involved and needing to be resolved at what is a very difficult time. As such I would recommend seeking legal advice to understand what legal powers the executor will have in this situation and to clarify what the SIL can or cannot do with regards the property. It may not relieve any of the stress or anxiety of course but understanding what the SIL can actually legally do may help with any future discussions around what happens next re the property.

getmore4less

Another issue may be that depending on the wordings of the will(s) and the death order the wife may never have inherited the property, the children of the brother may have.

getmore4less

Thanks LRr

Interesting learn something new every day.