Tenancy in Common and Property Trust Will

BelindaDido

I am an executor and trustee under a will where the estate includes a freehold property subject to a Tenancy in Common ownership. The Estate Planning company which drew up the will has told us that a trust deed needs to be created. Is this really necessary?

We (the executors and trustees) were of the opinion that a copy of the death certificate and grant of probate, if placed with the deeds or submitted to the Land Registry, would be sufficient.

What would be in the trust deed?

Why would it be beneficial to have a trust deed?

Crabapple

Presumably this is a case where one of the co-owners has died, and the other has been left a life interest in the deceased's half share?

Are there provisions in the Will explaining their responsibilities for insurance, repairs, utilities? What happens if they remarry or cohabit? What if they want to move - can the Trust continue to a new property?

Those are the kind of things that need to be set out somewhere. However, they can, and IMO should, have been sent out in the Will itself. So if they aren't then a Deed might well be needed but an explanation of why the will writers didn't put this in in the first place might be worth asking for!

BelindaDido

I do not yet have a copy of the will in front of me - it's on its way - but I have had parts of it read to me over the phone and insurance, repairs and moving are all mentioned (not sure about re-marriage).

If all these responsibilities are mentioned in the will, can you think of any other reason why a deed should be created, other than perhaps to confirm that the named trustees are willing to accept their appointment?

I suppose what I am asking is: 'Is there a legal necessity for an additional deed to be created and signed?'

getmore4less

I think the will is enough it creates any trust so those are the terms, even if there are none.

Creating new terms might be beyond the scope of the trustees anyway if not granted by the will.

BobQ

If the ownership of the property is as tenants in common it implies one or more living persons own a part of the property in addition to the share owned by the deceased and now his estate. There is no reason to create a trust unless the Will states that the deceased's share is to be held in a trust.

It appears from what was added to the OP that such a Trust is created by the Will. Unless it is clearly defined I would get advice from a solicitor not an Estate Planning Service.

The need for the trust appears to be to protect the interests of the beneficiary and whoever else is occupying the house, but without more info it is difficult to comment.

BelindaDido

I will provide more detailed information in the next day or so, when I have received a copy of the will.