Jointly owned house A.N. Other moving in

xylophone

You need to remember that you have to separate yourself as Trustee from yourself as a private individual.

With regard to the terms of the Trust, I do not see what would need to happen for her to cease to have entitlement to occupy the house.

The terms you have cited do not say that immediately she moved out she would then cease to have any entitlement to move back, nor does it say that if she moved out that the house would need to be sold?

In your position, I would consult a solicitor expert in wills and trusts and establish what ends her entitlement and whether or not she has a beneficial interest in 50% of the house or its proceeds that form part of her own estate.

I would also enquire as to the rights of succession of any spouse.

I would also check on what kind of Trust this is and to its tax treatment.

http://www.step.org/member-directory

Land_Registry

Others have rightly mentioned the effect of the trust and the implications for the beneficial ownership in the property

You do not mention the legal ownership, namely the registered title, and how that is currently held. Whilst this may not make too much difference re your OP it can be helpful to understand who the registered legal owner is and whether the trust is protected in some way.

For example this type of trust arrangement can mean that the property was registered to your Father and Stepmum as joint owners but as tenants in common to reflect the trust/% share arrangement.

If so then the legal ownership has passed to your Stepmum as the sole surviving owner but she should act in any dealings with the property e.g. sale, mortgage in accordance with the trust. She cannot act alone on this but should appoint someone to act with her in certain circumstances.

Checking this can help both you and your Stepmum to understand the what happens next scenarios re the property specifically.

Soundgirlrocks

Ive just double checked the land registry and my father is still listed as the registered owner, I must admit I thought my step mum had changed this to the both of us. She dealt with all the paperwork regarding the will, as all the documentation was at the house, she wasn't working so it made sense at the time (Yes I did offer to be more involved before anyone blasts me for not taking an active role in sorting out the estate but I live at the other end of the country so logistically it was much easier for her to deal with it and she wanted to do it)

AdrianC

Soundgirlrocks wrote: »

I must admit I thought my step mum had changed this to the both of us.

But, from what you've told us, the two of you AREN'T yet the owner. The trust is, and will remain, the owner until such time as your stepmother dies or voluntarily rescinds her lifetime occupancy. Then, and only then, do you and your stepmother (or her estate) become joint owners.

xylophone

Ive just double checked the land registry and my father is still listed as the registered owner, I must admit I thought my step mum had changed this to the both of us.

You mean to "A and B Trustees of the XY Will Trust"?

Remember the Trustee/Individual basis.

Qualified, professional legal advice to clarify the situation?

Land_Registry

Soundgirlrocks wrote: »

Ive just double checked the land registry and my father is still listed as the registered owner, I must admit I thought my step mum had changed this to the both of us. She dealt with all the paperwork regarding the will, as all the documentation was at the house, she wasn't working so it made sense at the time (Yes I did offer to be more involved before anyone blasts me for not taking an active role in sorting out the estate but I live at the other end of the country so logistically it was much easier for her to deal with it and she wanted to do it)

That's useful to know and I assume by paperwork you mean that she obtained probate as well?

Probate then allows the executor to deal with the deceased's estate which includes the legal ownership of the property. That could be why it has been left registered in your late Father's name but it may be something worth considering to ensure the legal ownership is reflected on the register and the trust is protected.

There is a lot to consider here but if you have not checked re probate it may be worth doing that as well just so you have a complete picture of what the current state of play is so that any wider advice you obtain has all the details? - that's not a criticism but simply an emphasis on how the issues of trusts, wills, legal/beneficial ownership can be very complex and how one thing can effect another and as xylophone posts qualified professional legal advice is important

Soundgirlrocks

Land_Registry_representative wrote: »

That's useful to know and I assume by paperwork you mean that she obtained probate as well?

Probate then allows the executor to deal with the deceased's estate which includes the legal ownership of the property. That could be why it has been left registered in your late Father's name but it may be something worth considering to ensure the legal ownership is reflected on the register and the trust is protected.

There is a lot to consider here but if you have not checked re probate it may be worth doing that as well just so you have a complete picture of what the current state of play is so that any wider advice you obtain has all the details? - that's not a criticism but simply an emphasis on how the issues of trusts, wills, legal/beneficial ownership can be very complex and how one thing can effect another and as xylophone posts qualified professional legal advice is important

Thank you, yes I'l be getting some proper legal advise, and yes she obtained probate as well, the only thing left is the house the rest of the assets have been equally divided.

I don't think my father thought it would be complicated at the time I think they both thought she would live there till she died,but there are a lot of what if's another complication is that she has spent a lot of the lump sum on the house in the form of an extension, that really won't have added anywhere near that much in value to the property. Again I didn't have an issue with it when I expected her to be living there for the next 25 + years. I don't think this affects the legal division of the property but if she want's to sell sooner rather than later I'll look at what might be a fairer split to take in to account the addition money she has put into the property.

AdrianC

Soundgirlrocks wrote: »

but if she want's to sell sooner rather than later I'll look at what might be a fairer split to take in to account the addition money she has put into the property.

You are, of course, free to do so - but you have no need to do so.

This is one of those times when it might help you to visualise each person having different hats that denote their different roles.
She has a hat marked "occupant". She has another hat marked "trustee". You also have an identical "trustee" hat, plus one marked "bystander interested in the welfare of the occupant". Neither of you can wear each other's hats, and neither of you can wear both hats at the same time. Her "occupant" hat ONLY fits her head, nobody else's. When the trust ceases to be valid, because she's taken her "occupant" hat and burnt it, then the markings on both of your "trustee" hats will magically fade, to be replaced by markings saying "part-owner"*.

Wearing her "occupant" hat, she CANNOT sell the property. If she takes her "occupant" hat off, and puts on her "trustee" hat, then she can discuss with you (wearing your "trustee" hat) whether the trust should sell the property, since the occupant has decided to vacate it.

Part of her responsibilities (with the "occupant" hat on) under the term of the trust is to maintain the property. There is no wording that says anything about responsibilities for improvements. With each of your "trustee" hats on, you both discussed the conservatory, and agreed it could be built, with her paying. That doesn't affect anything else.

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* - A bit of a simplification, since one or either of you could be replaced as trustees, but would remain as future part-owners.

Land_Registry

Adrian C uses a useful analogy but I think you also need to add in an extra hat, namely the executor's hat if she has probate.

Probate enables her to deal with the deceased's estate so that includes the legal ownership of the property. As such she could look to sell the property as the executor. A buyer would be unaware of the trust for example and would rely on the probate as evidence of her legal authority to sell.

My very limited understanding of probate law and trusts and the reading of numerous threads on various forums suggests that where wills/trusts are involved the legal expectation is that all the parties wearing the hats act accordingly - where it can get complicated is how the individuals see the beneficial ownership, namely the % shares and how that may be seen as relating to the % share in the proceeds of any sale for example.

I flag this simply as another matter to raise with any legal adviser as whilst she cannot sell wearing the occupant's hat she could in theory do so wearing the executor's hat albeit then perhaps leaving herself open to a legal challenge re the trust.

Soundgirlrocks

Land_Registry_representative wrote: »

Adrian C uses a useful analogy but I think you also need to add in an extra hat, namely the executor's hat if she has probate.

Probate enables her to deal with the deceased's estate so that includes the legal ownership of the property. As such she could look to sell the property as the executor. A buyer would be unaware of the trust for example and would rely on the probate as evidence of her legal authority to sell.

I flag this simply as another matter to raise with any legal adviser as whilst she cannot sell wearing the occupant's hat she could in theory do so wearing the executor's hat albeit then perhaps leaving herself open to a legal challenge re the trust.

Thank you, the trust exists solely to allow her to continue living in the property if she sold it with executor's hat on then wouldn't that automatically end the trust?