My daughter passed away, no will, property is tennent in common

Petra_70

Sorry for your loss Lostmummy. What a terribly sad tale.

I hope you can find peace. :heart2:

DandelionPatrol

Lostmummy wrote: »

Please can you help. If a person passes away , they are tenents in common with a property with a unmarried partner and they have not left a will but have left a declaration of trust in the partners name as beneficiary of the property on death. Does the declaration of trust supersede the laws of intestate? Also If I am named as benificiary on the declaration of trust can I just sign this over to her partner. He has advised that his solicitor who he is selling the house through says that this is ok and therefore I would not need to apply for letters of administeration to deal with the selling of the property at all as next of kin after my daughter / his partner passed away . His solicitor says If his name is on the declaration of trust I am not needed to sell the property as it all goes over to him, and if my name is on the declaration of trust I just have to sign that over to him and no administeration letters needed to do that .I don't know if this is correct. Please can you assist? Many thanks in advance . Lostmummy.

What you are saying is not terribly clear. Who are the beneficiaries of this trust as a result of your daughter's death? You or the partner?

It seems to me that this Declaration of Trust may be adequate for the solicitor to proceed, [even though it has been said on this thread that the solicitor is wrong]. The Land Registry in the first instance only deals with legal ownership and a very broad brush approach to the beneficial aspects of ownership with Join Tenants and Tenants in Common [actually, there is a Form JO, which allows the Land Registry to record more specific information]. A Declaration of Trust allows things to be more closely defined. As Joint Tenants and Tenants in Common are, I suppose, effectively forms of Trust, I see no reason why a Declaration of Trust could not vary Tenants in Common to Joint Tenants in certain circumstances and thereby establish inheritance with priority over either a will or intestacy.

A somewhat technical answer, which needs checking out, but the up shot is that if the Declaration of Trust is valid, it may in its own right determine ownership of the property after your daughter's death.

getmore4less

It may wll be possible to ell the house without a grant.

The land registry rep has covered this before so may be able to clarify.

The removal of the dead person from the registry can be done with the death certificate.

The trust deed MAY be sufficient evidence for the land reg to remove the restriction on sale due to TIC.
(this is the bit that would need clearing with the land reg)

normaly the grant and executors do this.

Land_Registry

Sorry, but we can't give advice as to whether the declaration of trust will have the effect that's been suggested. As getmore4less has said, it is possible that application can be made to us to remove the restriction that we enter as a result of the tenancy in common on the basis of that, or that it could be produced at the time that the sale is registered to show that your daughter's interest in the property has been properly dealt with, but it's impossible to be definitive about that on this forum. An application will need to be made to us and then we'll be able to confirm things, at least from the land registration point of view.

Newly_retired

You do need legal advice, but what I can say is that at one point I used a Declaration of Trust in connection with a house, to save changing my will for a short period( a few months gap between buying one and selling another's). Done through a solicitor, I was assured that this would take precedence over my will, or rather, clarify it re an unmentioned property, until the whole chain was completed.
So it could be that your DofT will work, and enable the partner to sell the property without any further ado.

misslou7

Aside from the house itself, did your daughter leave any other assets or debts? These would still need to be dealt with via the Deed of Administration.

Do you have a copy of the Declaration of Trust? It's odd that one was used if 50:50 ownership with the intent to pass on to the partner as it would have been simpler to be joint owners instead of tenants in common, bypassing any Declaration / Deed.

We've had something similar with my mother-in-law and a fair amount of skullduggery on the joint owner's part. I would recommend that you call a local solicitor and get some free advice. The ones we've spoken to have been very helpful. I'd be wary about signing things over in the immediate term.

Lostmummy

Thank you so much for the replies . We do not know at this point who the Benificiary is. The declaration of trust, her partners solicitor is getting this recalled so that we know. Is it the case of if the declaration beneficiarie is her partner then that is binding over the rules of intestate? Other assets were minimal .The bank released money for the funerals and then released the minimal remainder to me. It really is just the property that needs to be dealt with now. There was a loan secured to the property in both their names but her partner says that he paid that off with the insurance money. I am not aware of any other things. Is there anyway that things could backfire on me if there are outstanding debts as next o kin as her partner is dealing with the sale of the property and I am aware that his solicitor will be acting in his best interest as her client and not mine. In addition, when the property sale goes through will the mortgage debt be paid off as standard , is this the duty of the solicitor handling the sale? The company I work for has a employee assistance program that offers legal advice. I will call them on Thursday Once again, thank you all.

Lostmummy

Well it seems that there is no declaration of trust. The solicitor has been making enquiries and I have looked on the land registry and there is nothing noted anywhere. This seems strange as I would have thought this was standard as part of the legal process when being tenants in common. As I have no administration papers at this stage the solicitor says that I could be appointed as a trustee for the property sale and sign the paperwork needed and then I can deal with the intestacy rules when I get the administration of the estate papers through. Does this sound correct? It sounds like the easier option at the moment so that the sale can go ahead. I have my daughters birth certificate and her death certificate , the beneficiaries to my daughters half of the property would be myself and her father so we wouldn't have anyone chomping at the bit to get things done . This would give us the breathing space we need without delaying the property sale for her partner. Are there any pitfalls to doing it this way? Many thanks.

Yorkshireman99

Lostmummy wrote: »

Well it seems that there is no declaration of trust. The solicitor has been making enquiries and I have looked on the land registry and there is nothing noted anywhere. This seems strange as I would have thought this was standard as part of the legal process when being tenants in common. As I have no administration papers at this stage the solicitor says that I could be appointed as a trustee for the property sale and sign the paperwork needed and then I can deal with the intestacy rules when I get the administration of the estate papers through. Does this sound correct? It sounds like the easier option at the moment so that the sale can go ahead. I have my daughters birth certificate and her death certificate , the beneficiaries to my daughters half of the property would be myself and her father so we wouldn't have anyone chomping at the bit to get things done . This would give us the breathing space we need without delaying the property sale for her partner. Are there any pitfalls to doing it this way? Many thanks.

It sounds to me as if all the solicitor is interested in is adding up their fees. The quickest and cheapest thing is to apply for letters of administration yourself and instruct the solicitor just to deal with the sale without racking up more costs.

Lostmummy

I get that Yorkshireman99, I really do get that, I appreciate that this probate stuff is all run o the mill to you guys, but I can only deal with so much at once. I was not counting on the fact that her partner would want to sell the property, ( not sure what I was expecting to be honest, never expected any o this to happen ) , but he is and he has a buyer lined up. If being a trustee buys me some more time to deal with stuff then for £100 or whatever the price is to be made a trustee whilst I get the administration papers in place , well it buys me more head space to deal with thing one step at a time eh! Can you confirm that acting as a trustee will enable me to sign the papers to sell the property whist the sale of the property goes through? I will o course apply for administration but I do not suspect that will come through in time to keep the buyer happy. Just trying to buy some time , sell the property and summon up the strength to start on the administration stuff