Land registry tenants in common discretionary trust

seh567

my husbands share of family home is in descretionary trust as per will after he passed away 21 months ago. As excecutor I was granted probate approx 3 months after his death. To date however I have not done anything about advising land registry office so deeds show that we both still own 50% shares as tenants in common so effectively I cannot sell the house at this moment in time. I suspect I need to transfer my husbands share to the trustees of the trust who are myself and my 2 sons. Can I do this myself via land registry forms or should I do it via a conveyancing solicitor? Incidentally I did the probate myself which I found pretty straightforward

SevenOfNine

SeniorSam would be able to give the best advice on this particular topic, haven't seen him here much recently so maybe a PM might be appropriate, see if he's still active on MSE.

Personally I don't think you should do anything about changing the registration of your late husband's 'half' until you've taken proper advice (or researched) the new Family Home Allowance, rolling out in April.

I thought you had Nil Rate Band Discretionary Trusts, as opposed to the Will actually specifying a half share of the property in trust?

Edit: SeniorSam has commented in Jade11's post titled "Inheritance??".

Land_Registry

A few things to clarify from purely a registration perspective

The register will confirm your joint names as the registered owners and presumably a form A restriction is the next entry. The register will not refer to 50/50.

The restriction is key here as to what you cannot do on your own, namely you cannot take 'receipt of capital monies'. This means that you cannot for example sell/mortgage on your own.

You can however appoint someone to act with you on say the sale and the two of you take receipt if the monies. The monies are what is effectively split 50/50.

So it is wrong to say you can't sell as you can as long as with someone else.

If you wished to transfer the whole of the legal title into the names of you plus your sons then you can. https://www.gov.uk/registering-land-or-property-with-land-registry/transfer-ownership-of-your-property
You would also need to submit an official copy of either the death certificate or probate.

Alternatively you could market the property, find a buyer, and appoint one or both sons (or someone else) to act with you on the end transfer.

As already posted I would strongly recommend getting legal/financial advice as well. On paper things can appear simple but it's the legal/financial impact of such changes that tend to be complex especially around the discretionary trust.

seh567

Thank you for sound advise. I have made an appointment with STEP solicitor. I think it's worth paying some monies to get it right

SeniorSam

No need to make the change if you want to sell the home. The solicitors acting for you would do that in the conveyancing process. When one person dies as owning a property as tenants in common, it does not require any changes to be made before selling the property. You own 50% and the other half is in Trust for your sons and you whilst you are alive. Selling the property only requires the agreement of the Trustees so you and your sons would simply sign the sale deed and the new property would ideally be in your sons names, with yourself and passing your part to your sons on your death, which you should have in your Will.

The solicitors will be able to explain it in ore detail if you wish, but no need to to make the changes until the sale at which time it can all come together.
Sam

SevenOfNine

SeniorSam wrote: »

No need to make the change if you want to sell the home. The solicitors acting for you would do that in the conveyancing process. When one person dies as owning a property as tenants in common, it does not require any changes to be made before selling the property. You own 50% and the other half is in Trust for your sons and you whilst you are alive. Selling the property only requires the agreement of the Trustees so you and your sons would simply sign the sale deed and the new property would ideally be in your sons names, with yourself and passing your part to your sons on your death, which you should have in your Will.

The solicitors will be able to explain it in ore detail if you wish, but no need to to make the changes until the sale at which time it can all come together.
Sam

If OP did that, might it create problems IF one/both of the sons is/gets married then divorced? Would owning a share in the new house not be taken into account within a divorce settlement?

Also, what if same 'married' scenario for one of the sons, who then died. Wouldn't that mean inheritance problems if he does not have a Will leaving his part of this house to brother/mother?