Joint Mortgage who is Liable if Tenants in Common?

eve1978

Hi all

Administering my late mum's estate as executrix, she owned two properties with ex spouse which were supposed to be sold under a court order for sale issued in 2013, however ex sat on them for years, living in one and renting out the other, and was generally non-communicative in last year of her life.

Fast forward to now one of the properties is sale agreed, the other one should hopefully be marketed soon, under pressure from myself to enforce the court order. Unfortunately the latter property is in Rep of Ireland and will have to go through rigmarole of tax returns and probate there before can actually complete a sale, but that's another story.

My question is regarding the status of the mortgages, held in joint names between mum and her ex. I am told that the estate are not liable to pay any of the outstanding mortgages, which pass to surviving ex husband. If we pay say 50% of mortgage redemption figure on completion of sale it will be on basis of a gift from estate. Is this generally the position in law? The banks are being unclear about their view on estate's liability, of course, one of them won't give me copy of t&cs mortgage deed etc without written consent of other joint owner.
The properties were purchased many years ago as joint tenants however jt of one was severed expressly and the other one arguably through course of dealing, mum's share therefore passing to estate.

Much obliged for your thoughts on this.

Yorkshireman99

eve1978 wrote: »

Hi all

Administering my late mum's estate as executrix, she owned two properties with ex spouse which were supposed to be sold under a court order for sale issued in 2013, however ex sat on them for years, living in one and renting out the other, and was generally non-communicative in last year of her life.

Fast forward to now one of the properties is sale agreed, the other one should hopefully be marketed soon, under pressure from myself to enforce the court order. Unfortunately the latter property is in Rep of Ireland and will have to go through rigmarole of tax returns and probate there before can actually complete a sale, but that's another story.

My question is regarding the status of the mortgages, held in joint names between mum and her ex. I am told that the estate are not liable to pay any of the outstanding mortgages, which pass to surviving ex husband. If we pay say 50% of mortgage redemption figure on completion of sale it will be on basis of a gift from estate. Is this generally the position in law? The banks are being unclear about their view on estate's liability, of course, one of them won't give me copy of t&cs mortgage deed etc without written consent of other joint owner.
The properties were purchased many years ago as joint tenants however jt of one was severed expressly and the other one arguably through course of dealing, mum's share therefore passing to estate.

Much obliged for your thoughts on this.

It will depend on the exact terms of the mortgage. You need paid for professional advice because it is far too complex a situation to rely for advice from here.

eve1978

I have a conveyancing solicitor but I am still interested in other opinions! Solicitors don't always get things right.

Yorkshireman99

You need one who has expertise in the areas you need. Solicitors often have lower qualified staff to do routine conveyancing.

getmore4less

My question is regarding the status of the mortgages, held in joint names between mum and her ex. I am told that the estate are not liable to pay any of the outstanding mortgages, which pass to surviving ex husband. If we pay say 50% of mortgage redemption figure on completion of sale it will be on basis of a gift from estate. Is this generally the position in law?

The mortgage will in most cases have the clauses that transfer the debt to the estate but that does not matter unless there is negative equity.

Secured debts effectively stays with the property(unless a will says pay it off from other funds).

The mortgage redemption takes priority over the share of the house becoming part of the estate,
Only the share of the free equity belongs to the estate.

The mortgage gets paid from the proceeds and what is left is distributed to the owners.

Savvy_Sue

eve1978 wrote: »

Solicitors don't always get things right.

No, but the point of getting 'proper' (ie paid for) advice is that you can then sue the pants off them if they get it wrong!

Yorkshireman99 wrote: »

You need one who has expertise in the areas you need. Solicitors often have lower qualified staff to do routine conveyancing.

Absolutely, I'd have said this was a question for a STEP qualified specialist, not a routine conveyancer.

Yorkshireman99

getmore4less wrote: »

My question is regarding the status of the mortgages, held in joint names between mum and her ex. I am told that the estate are not liable to pay any of the outstanding mortgages, which pass to surviving ex husband. If we pay say 50% of mortgage redemption figure on completion of sale it will be on basis of a gift from estate. Is this generally the position in law?

The mortgage will in most cases have the clauses that transfer the debt to the estate but that does not matter unless there is negative equity.

Secured debts effectively stays with the property(unless a will says pay it off from other funds).

The mortgage redemption takes priority over the share of the house becoming part of the estate,
Only the share of the free equity belongs to the estate.

The mortgage gets paid from the proceeds and what is left is distributed to the owners.

Without seeing the terms of the mortgage nobody can be sure. That is why professional advice is essential.