Will over Deeds?

Mysteek

Any advice would be grateful please on the following situation.

Earlier this year my mum died leaving her half of mum and dad’s property to me and my brother. I think they call it tenants in common. I saw her will and it clearly states this. My dad, who survives her is also a ‘trustee’ of her half of the property and can live there until his death. My understanding is that he is the ‘legal’ owner of the property and my brother and I are ‘beneficial’ owners of my mum’s half, this trust coming into effect on the death of the first person i.e. my mum.

The mortgage on the property was cleared some 20 odd years or more but my mum and dad took out a loan secured on the property a few years back and still owe some of this loan and the deeds are held by the loan company.

Ok the above should be pretty clear so far but now comes a confusing bit as I only have what my dad says to go on and I’m not fully convinced he knows exactly what all this entails. He thinks he is very savvy and understands everything but he doesn’t understand the intricacies of the legal system.

He says that because he still owes some money on the secured loan that the loan company have put the deeds in my dad’s name only and that if he ever needed to go into care then the council would be able to take the whole of the property to pay his care fees if that was the case, thereby overriding mum’s will.

Is this correct? Does the name on the mortgage deeds override the conditions of a will?

I didn’t expect mine and my brother’s names to be entered on the deeds anyway as we are not legal owners of the property, my dad is. Is this correct?

He said he spoke to his solicitor who offered to take it further with the loan company but it would cost him money which my dad can’t afford, so basically he left it as is. I couldn’t understand what the solicitor was going to do about it. He says he is in good health and not losing his mind so shouldn’t need care so all will be ok. He is nearly 86. I tried to tell him that he has no control of him losing his marbles and he won’t necessarily know when it starts to happen. We all wish him to carry on in good health for many years to come but there is no guarantee.

What do I do about this? To him the subject is closed. If I went and sought legal advice (a) I don’t have all the documentation and (b) if he found out he would be annoyed as he would take it as going behind his back.

Although I have a brother he would be no good at sorting anything out as and when anything happens to dad, it would all be left to me as usual. I’m just trying to get things clear in my head in case anything happens.

g6jns_2

Mysteek wrote: »

Any advice would be grateful please on the following situation.

Earlier this year my mum died leaving her half of mum and dad’s property to me and my brother. I think they call it tenants in common. I saw her will and it clearly states this. My dad, who survives her is also a ‘trustee’ of her half of the property and can live there until his death. My understanding is that he is the ‘legal’ owner of the property and my brother and I are ‘beneficial’ owners of my mum’s half, this trust coming into effect on the death of the first person i.e. my mum.

The mortgage on the property was cleared some 20 odd years or more but my mum and dad took out a loan secured on the property a few years back and still owe some of this loan and the deeds are held by the loan company.

Ok the above should be pretty clear so far but now comes a confusing bit as I only have what my dad says to go on and I’m not fully convinced he knows exactly what all this entails. He thinks he is very savvy and understands everything but he doesn’t understand the intricacies of the legal system.

He says that because he still owes some money on the secured loan that the loan company have put the deeds in my dad’s name only and that if he ever needed to go into care then the council would be able to take the whole of the property to pay his care fees if that was the case, thereby overriding mum’s will.

Is this correct? Does the name on the mortgage deeds override the conditions of a will?

I didn’t expect mine and my brother’s names to be entered on the deeds anyway as we are not legal owners of the property, my dad is. Is this correct?

He said he spoke to his solicitor who offered to take it further with the loan company but it would cost him money which my dad can’t afford, so basically he left it as is. I couldn’t understand what the solicitor was going to do about it. He says he is in good health and not losing his mind so shouldn’t need care so all will be ok. He is nearly 86. I tried to tell him that he has no control of him losing his marbles and he won’t necessarily know when it starts to happen. We all wish him to carry on in good health for many years to come but there is no guarantee.

What do I do about this? To him the subject is closed. If I went and sought legal advice (a) I don’t have all the documentation and (b) if he found out he would be annoyed as he would take it as going behind his back.

Although I have a brother he would be no good at sorting anything out as and when anything happens to dad, it would all be left to me as usual. I’m just trying to get things clear in my head in case anything happens.

Has your mother's will been admitted to probate? Who is the executor? Is the property registered with the Land Registry? The exact wording of the will is important as well. The council could not take the whole value only the part that belongs to your father. They might not be able to take that. You really need to give that information to get accurate advice. Age UK fact sheet 38 may help.

Crabapple

I would also look online - you can get a copy of the Land Register for a few quid. It will tell you who is named as owner. You can do this without your father knowing.

It would be unusual for a lender to amend the title themselves. The loan itself would have gone into a sole name as the joint borrower had died, but I doubt they would have transferred the property, and could not have done so without the signature of your father and one other if the house is owned as tenants in common.

Land_Registry

Mysteek wrote: »

I didn’t expect mine and my brother’s names to be entered on the deeds anyway as we are not legal owners of the property, my dad is. Is this correct?]

If the property is in England & Wales and registered in their joint names or just tour father;s name then the legal ownership rests with him.

As you clearly appreciate the legal ownership/title, as registered by us is quite separate from the beneficial title as covered by any wills etc.

If your late mother's share has passed to you and your brother then your father or her executors cannot transfer a share so it would be down to your father to transfer the legal title to himself and the two of you if that was what was wanted. The mortgage lender would not be in a position to do this.
Your father would be able to transfer the legal title himself to the three of you by way of gift and without 'one other' as no capital monies would be paid.

The register can be viewed/downloaded online for £3 which would confirm the name(s) of the registered owners of the legal title. If the 'share' aspect had been recorded in some way then the title may refer to a form A restriction after the name(s) of the registered owner(s).

However the existence of such a restriction does not necessarily mean that a record of the 'share' aspect was ever applied for as it can be registered in other circumstances.

Our online guidance explains joint property ownership in more detail and also enables you to view/download a copy of the register online.

The issues around any the mortgage and what happens next re the estate from a 'care' or other aspect are outside our remit

BobQ

OP,

If it turns out that you and your brother have a share of the house left by your mother's will as tenants in common the executor of her estate is legally obliged to make that happen.

If you do have a share as a tenant in common, note that you will probably have to pay some Capital Gains Tax on that share when the property is sold. Given Dad's age this may not be much, but if he lived to be 100, it may be something to be aware of.

Mysteek

Many thanks for all of you for taking the time to offer advice, I'm still confused and don't know what to do next for the best. Maybe I'll just do nothing and see what happens

BobQ

Mysteek wrote: »

Many thanks for all of you for taking the time to offer advice, I'm still confused and don't know what to do next for the best. Maybe I'll just do nothing and see what happens

Spend £3 on the Land Registry website to get a copy of the title. This should tell you if the house is registered in one name or more, whether there are any mortgages or other loans secured on the property and with whom, what changes have been made and when and whether there are any restrictions on sale etc. This is explained by the LR Rep earlier.

You may find your father has done something or done nothing.