Probate and tenants in common

3figures

My father in law died recently and has left everything to his wife. All their assets such as bank accounts etc are in joint names so automatically become sole accounts but some years ago they severed their joint tenancy of their house and became tenants in common. The house and assets will not be of sufficient value to require inheritance tax to be paid but does my mother in law need probate in order to get the house into her sole ownership? My reading of this is that she does since his estate (and his sole estate only consists of his half of the house - everything else is joint) needs to be transferred to her. She is desperate to avoid having to do probate but we have encouraged her to consult a solicitor who she says has told her probate isn't needed as the law has changed. We are not wholly sure she has shown them the severance of joint tenancy documents but does anyone else have experience of this and is it correct that she doesn't need probate?

Yorkshireman99

3figures wrote: »

My father in law died recently and has left everything to his wife. All their assets such as bank accounts etc are in joint names so automatically become sole accounts but some years ago they severed their joint tenancy of their house and became tenants in common. The house and assets will not be of sufficient value to require inheritance tax to be paid but does my mother in law need probate in order to get the house into her sole ownership? My reading of this is that she does since his estate (and his sole estate only consists of his half of the house - everything else is joint) needs to be transferred to her. She is desperate to avoid having to do probate but we have encouraged her to consult a solicitor who she says has told her probate isn't needed as the law has changed. We are not wholly sure she has shown them the severance of joint tenancy documents but does anyone else have experience of this and is it correct that she doesn't need probate?

What does the Land Registry entry say? If the severance has not been recorded in it then probably just the death certificate will suffice. The LR representative will be along shortly with a definitive answer!

Crabapple

The Land Registry won't need a Grant either way.
If the severance is noted on the register then the surviving owner would need to appoint a co-trustee to sell or transfer the house.

getmore4less

While waiting for the land reg rep, they have covered this before probably come up with some clever searching(might have been on one of the property sections.

Savvy_Sue

Did FIL leave a will?

If he did, who's executor?

Does MIL intend to move house any time soon?

In my admittedly limited experience, it would make life simpler on her death if she had transferred the property into her sole name, and it's possible that if she does not apply for probate / letters of administration then whoever deals with her estate would have to deal with FIL's as well.

Do you know why she is desperate to avoid doing probate? It's unlikely to be difficult, and it doesn't have to be done immediately / in a hurry. Would it help if you / your spouse / some other family member offered to do the paperwork and just get her to sign the forms?

Yorkshireman99

The OP stated there is a will. As you say it may be much simpler if shecdoes apply. Also half the value of the joint accounts need to be included in the value of the estate.

brewerdave

Nobody has asked the Q -WHY was the joint tenancy severed? Was the intention to leave half the house to someone other than wife -and if so, what did his will say??

3figures

Thanks for all the replies. I don't know about the land registry entry so would have to look at that. My MIL actually thought that her husband's will had been written so that his half of the house had been left to their two sons - advice they were given some years ago to avoid it being counted as an asset should there be a need later for care home fees etc. That was the reason they were advised to sever the joint tenancy and we have the signed document confirming the severance. When we found the will, he had in fact left everything to her (think they may have been victims of a will writing company in drawing up their new wills) . MIL is the sole executor of the will.

She wants to avoid probate for tricky family reasons - my MIL and FIL have for years been funding one of their sons (brother in law) as he chose not to work and they don't want my husband to know how much he has been given (gifted) over the past 7 years as it is a substantial amount (my husband has always known this was going on but not the scale of it). We offered to do the probate but she doesn't want us to know the figures. So she could avoid doing probate until she wants to sell or until she dies and we do both (what a potential headache!)? The solicitor she consulted said she didn't need probate at all so I am a little confused.

brewerdave

If the son has been gifted "considerable" amounts over the last 7 years,the value of the gifts could push the estate into IHT territory possibly?
I thought that if an estate was over £150k then probate was required even if it is below the IHT threshold?

3figures

The value of half the house and the gifts are unlikely to put it over £150k actually as I don't believe the house is worth that much but there hasn't been a valuation. The gifts probably total tens of thousands but would they be halved as they were paid from joint accounts we believe? Our concern is that if she has been advised not to get probate, can she actually sell the house if she decides to? The solicitor seems to have advised her it will just be moved into sole names automatically without probate?

Land_Registry

As far as the registered title is concerned probate would not be required as the legal ownership passes to the surviving joint owner.

Severing the joint tenancy relates to the beneficial ownership and as suggested joint owners may decide to do this for a variety of reasons including leaving a share to someone.

To put the legal ownership into her sole ownership we would simply require a completed form DJP and an official copy of the death certificate.

If they severed the joint tenancy and then applied for a form A restriction to be registered then this would have to be dealt with if she then wished to change the legal ownership.

For example if the legal ownership were to be transferred to her and say the two children then this can be done by her transferring to the three of them. As the transfer would be by way of a gift, not a sale for example, the form A does not come into play for registration and it would remain on the register unless application was then made to remove it.

If she chose to sell the property (or mortgage it) then the restriction does come into play as 'capital monies' (the purchase price/loan) are involved. It does not stop her selling/mortgaging the property as such but she would not be able to do it on her own and would have to appoint someone to act with her as a co-trustee to take receipt of the monies.

The easiest way to understand this is that the property is the legal ownership but the severance effects the beneficial ownership and as you cannot cut the property into two or three or more pieces for each to own it is the monies that are divided - you can split £XXXK after all.

You can check the register online for £3 to confirm

Our Practice Guide 6 explains how to update the register re the death and also deal with the form A restriction - this is provided to cover the same scenario as the OP but where the deceased's share has also passed to the surviving owner for example. This again emphasises the fact that there are a variety of reasons why joint owners decide to sever their joint tenancy as it is not always to leave their share to someone else.