Three Executors and small estate

Land_Registry

hundredk - reading the entire thread again it may help to clarify the exact circumstances re the legal title (the land register) here as it should help us focus on the wider issues around the trust, wills, shares and rights to live in the property.

From your posts to date I suspect the following has happened with regards the registered title which deals with the property

Your Mother, when setting up the Trust referred to, transferred the property/title into the joint names of herself and one of the named executors

A form A restriction (see previous post re legal and beneficial ownership) was registered to protect the Trust, the beneficiaries' interest and how the property would be dealt with in the future

As such I suspect there is no issue over who is currently registered as the legal owner, presumably the sole surviving registered proprietor, as there is no intention to sell the property. The issues relate to how the estate is being handled and how the beneficiaries' interests are being considered.

If that is correct then the issue of the property and the legal title is perhaps one to still consider depending on the approach/attitude of the registered executor and fellow executors and/or beneficiaries.

As things stand, if my understanding is correct, then it is worth noting that the sole surviving owner can appoint someone else to act with him/her and sell the property. They do not have to appoint a fellow executor/beneficiary to do so although in my experience that is usually the case. I am simply pointing this out for awareness only and not suggesting that they would of course.

g6jns_2

Land_Registry_representative wrote: »

I suspect g6jns is referring to the wider issue re any trust and beneficial ownership (for example who get what should the owner die) rather than the legal ownership as shown on the land register itself.

The existence of any trust for example or that the joint owners may have 'severed their joint tenancy' can impact on the circumstances covered by your post. This aspect is explained in our guidance on joint property ownership

Apologies g6jns though if I have assumed wrongly

You are correct! Sadly this an aspect of the Land Registry system that could be greatly I proved but I suspect lack of legislative time has/will prevent it. Not a big vote winner!

hundredk

Land_Registry_representative wrote: »

hundredk - reading the entire thread again it may help to clarify the exact circumstances re the legal title (the land register) here as it should help us focus on the wider issues around the trust, wills, shares and rights to live in the property.

From your posts to date I suspect the following has happened with regards the registered title which deals with the property

Your Mother, when setting up the Trust referred to, transferred the property/title into the joint names of herself and one of the named executors

A form A restriction (see previous post re legal and beneficial ownership) was registered to protect the Trust, the beneficiaries' interest and how the property would be dealt with in the future

As such I suspect there is no issue over who is currently registered as the legal owner, presumably the sole surviving registered proprietor, as there is no intention to sell the property. The issues relate to how the estate is being handled and how the beneficiaries' interests are being considered.

If that is correct then the issue of the property and the legal title is perhaps one to still consider depending on the approach/attitude of the registered executor and fellow executors and/or beneficiaries.

As things stand, if my understanding is correct, then it is worth noting that the sole surviving owner can appoint someone else to act with him/her and sell the property. They do not have to appoint a fellow executor/beneficiary to do so although in my experience that is usually the case. I am simply pointing this out for awareness only and not suggesting that they would of course.

Thanks, after reading the documents I think that's nearly the situation.

Sons A, B and C are executors. Mum (M) and Dad (D) were joint owners of the property. A and B reside at the property.

Land Registry form TR1 dated 2006 states transferors M & D and transferee for entry on register is A

Official copy of register of title states under 'title absolute' that (1) A is proprietor and (2) no disposition to be made by proprietor unless they make a statutory declaration that the disposition is in accordance with the trust..

Declaration of trust between A and M&D, made at the same time states that:

1. A declares they will hold the property in trust for themselves, B and C as tenants in common in equal shares.

2. Also that M&D may reside in the property as long as they wish and A will not enforce the sale unless M&D first consent.

Mum and Dad have both passed away so my understanding is that A has the 'power' to enforce the sale if they so wish? (which they currently don't).

B is stating that they can forcibly buy out C but not the other way round.

A and C are agreeable on all matters relating to the property and administration of estate. B holds, and is keeping all the documents, information and accounts to themselves to the point of denying acess and being obstructive..

Land_Registry

hundredk - thanks for the clarification and I think that will make it easier for others to advise on, especially around the later points re the Trust and statements being made by A, B and C

The reality is slightly different to what I was expecting but that does not fundamentally change things too much from a registration perspective.

Essentially A is the registered proprietor and therefore legal owner BUT is restricted by the trust. In essence M & D transferred the legal title/ownership to A in 2006 but protected their interests and those of B and C by way of the trust and the restriction registered on the title as well.

So, from a registration perspective only, the two key points based on the details provided are 1) the restriction on A's ability to enter into a 'disposition', which would include a sale and 2) A has the 'power' to enforce the sale if they so wish.

A can in effect sell the property as he/she is the registered legal owner. To do so they would also have to comply with the restriction of course.

On the face of it both are quite straightforward as in theory A could quite simply sell, execute the Transfer needed to do so, complete the stat dec to say everything was done in accordance with the declaration of trust and the sale could be registered. Providing those aspects were complied with then the sale could be completed and we would be very unlikely to raise any issues such as investigating the declaration of trust and/or contacting B and C for example. From a registration perspective there is no requirement to do so.

The other key issues around B can forcibly buy out C or B can withhold information from A and C are in effect issues which are 'off the register' as they relate to the beneficial title (the trust aspects for example) and matters of law around how such trusts are complied with.

Others will hopefully be able to advise on what options might be available to you re resolving the issues but as far as the property is concerned then A is probably in the strongest position and providing they know the details of the declaration of trust then that aspect can presumably be covered as required if the property needed to be sold.

Legal advice is of course strongly recommended and the above is simply a view on how the registration of any sale would probably be dealt with from a registration angle alone.

hundredk

Land_Registry_representative wrote: »

hundredk - thanks for the clarification and I think that will make it easier for others to advise on, especially around the later points re the Trust and statements being made by A, B and C

The reality is slightly different to what I was expecting but that does not fundamentally change things too much from a registration perspective.

Essentially A is the registered proprietor and therefore legal owner BUT is restricted by the trust. In essence M & D transferred the legal title/ownership to A in 2006 but protected their interests and those of B and C by way of the trust and the restriction registered on the title as well.

So, from a registration perspective only, the two key points based on the details provided are 1) the restriction on A's ability to enter into a 'disposition', which would include a sale and 2) A has the 'power' to enforce the sale if they so wish.

A can in effect sell the property as he/she is the registered legal owner. To do so they would also have to comply with the restriction of course.

On the face of it both are quite straightforward as in theory A could quite simply sell, execute the Transfer needed to do so, complete the stat dec to say everything was done in accordance with the declaration of trust and the sale could be registered. Providing those aspects were complied with then the sale could be completed and we would be very unlikely to raise any issues such as investigating the declaration of trust and/or contacting B and C for example. From a registration perspective there is no requirement to do so.

The other key issues around B can forcibly buy out C or B can withhold information from A and C are in effect issues which are 'off the register' as they relate to the beneficial title (the trust aspects for example) and matters of law around how such trusts are complied with.

Others will hopefully be able to advise on what options might be available to you re resolving the issues but as far as the property is concerned then A is probably in the strongest position and providing they know the details of the declaration of trust then that aspect can presumably be covered as required if the property needed to be sold.

Legal advice is of course strongly recommended and the above is simply a view on how the registration of any sale would probably be dealt with from a registration angle alone.

Thanks, this is really helpful.

The main issues are around administrating the will which is separate from the trust, however the 'side issue' of the trust may be useful if it establishes A is in the strongest position.

As far as the issues around B claiming they can forcibly but out C, it would appear to be incorrect or bluff as the trust states:

1. Now this deed witnesseth that A hereby declares that he holds the said property in trust for himself, B and C as tenants in common in equal shares.
2. It is hereby acknowledged that it is intended that M&D be entitled to reside in the property for as long as they wish and the said A undertakes not to seek to enforce his right to require a sale unless M&D first consents.

B has retained the posted copy of the trust from 2006 and is evasive when it's mentioned, even saying A has no right to go to the solicitor to enquire about the trust etc. A has in fact been to the solicitor and obtained a copy of the declaration of trust (in fact only A was allowed to have a copy from them as he is the only one who signed the documents).

As M&D have passed away, only the first para of the trust would appear to apply now?... and that doesn't state any restrictions on selling. That being the case if A decides to sell, presumably B and C would need to be notified as part of the trust agreement and obtain their share (like it or not) on completion of sale? I ask this because A and B still live in the property and B is very controlling to the point of holding all details of accounts etc and being obstructive with the will, refusing to attend solicitors as collective executors etc so the property may be a useful lever.

Land_Registry

The remaining questions are for others to comment on I'm afraid as what legal obligations A is under by virtue of the trust/probate/wills are not matters which Land Registry would advise on.

hundredk

Thanks LRR

Can anyone advise on the trust part?

Also, if executor B refuse to go to see solicitor to release the will, can this go on indefinitely, effectively meaning he estate is not administered?

Ultimately, regardless of whether it goes to probate or not, what should happen with estate accounts; ie do they have to be agreed by all executors and do they have to be returned anywhere?

Thanks

getmore4less

On the trust: (one question, were you all over 18 hen this was set up?)

Looks like A holds all the cards, they are the only legal owner and trustee so have total control subject to B or C taking legal action to try and stop them.

Cards as in they are in a position to sell the property, but B lives in the property and B&|C could disrupt any attempt to sell the place by putting off buyers in a number ways, a sale needs a willing buyer and in most cases vacant possession.


Estate:

The only body that take an interest in estates are HMRC, if there is no tax due they tend to not bother.

hundredk

getmore4less wrote: »

On the trust: (one question, were you all over 18 hen this was set up?)

Looks like A holds all the cards, they are the only legal owner and trustee so have total control subject to B or C taking legal action to try and stop them.

Cards as in they are in a position to sell the property, but B lives in the property and B&|C could disrupt any attempt to sell the place by putting off buyers in a number ways, a sale needs a willing buyer and in most cases vacant possession.


Estate:

The only body that take an interest in estates are HMRC, if there is no tax due they tend to not bother.

Yes, all over 18 when trust set up.

A&C read as A has control and are going to see solicitor to confirm this is the case. I'm C and A&C agree (we both just want M&D wishes carried out correctly and respectfully). A&C never had any intentions of forcibly buying out but went to solicitors to find out what the situation was after being threaten with forced purchase by B. Ironically it appears A hold the cards and looks like M had foresight to protect A's interest as he is the weakest; B very controlling.

Estate - so B could ignore and refuse to attend collectively as executors and nothing could be done without the expense of instructing solicitors to serve notice? Even then, all M&D accounts were joint with B so anything in them is legally B's?

getmore4less

hundredk wrote: »

Even then, all M&D accounts were joint with B so anything in them is legally B's?

This is not allways strictly true but quite difficult to do anything about it if not documented that the account was not as joint tenants.

Here is one example there are others.

http://www.thesolicitorsgroup.co.uk/Downloads/Articles/21Jun2012/DrakefordvCotton.pdf