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Complicated Probate case... sigh

edited 14 June 2019 at 4:05PM in Deaths, Funerals & Probate
127 replies 7.8K views
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  • Adams18Adams18 Forumite
    109 posts
    Linton wrote: »
    Your description of the situation seems odd. Mortgages aren’t inherited. As far as I know when the borrower dies the mortgage needs to be paid off either by selling the property or someone else getting a mortgage in their own name. Does the mortgage company know that your father has died?

    I don’t believe that you can get a mortgage for part of a house. How would the lender get their money back if payments stopped?

    As Yorkshireman says you need good professional advice to fully understand and resolve the situation. You have no other option.


    Let me attempt to make it more simple to understand for you.

    I've lived in a house for 25 years. This house has an outstanding interest only mortgage that is due to mature in 3 months time. The bank want 80,000 pounds or they will take this house away.

    The mortgage was taken out by my father, he is now dead. His name is on the account, he is solely responsible as far as the lender is concerned.

    The house itself has one legal owner who is my mother. The house also has two beneficial interest owners, my mother and my father. The beneficial interest for my father amounts to 25 per cent. For my mother it is 75 per cent.

    My fathers 25 per cent can ONLY be accessed, liquidated, materialised in the event that my mother 1. Dies 2. Remarries. or 3. The house is sold by the lender.

    There is a court order that enforces the above.

    Hence if the mortgage is not paid, the house is gone, and I have to leave along with my mother.

    What would you do? If you in a community for 25 years and you had the ability to pay the mortgage given the above information?

    Pay? Or leave, this is my dilemma. It has very complicated... such as will the 25 per cent be resolved..? Etc... All I know is I have 3 months to inform the bank on what I intend to do... all they care about of course is their money!
  • Adams18Adams18 Forumite
    109 posts
    What make you think anyone here do better? Find another solicitor.


    What is your problem? What's with the unhelpful comments exactly?

    I've already said I am looking for a fresh perspective here. It either comes or doesn't come, it's free to try as I've exhausted legal advise and spent a fortune.
  • edited 15 June 2019 at 2:43PM
    Adams18Adams18 Forumite
    109 posts
    edited 15 June 2019 at 2:43PM
    Tom99 wrote: »
    The Land Reg deal with the legal ownership so I doubt they can help you.
    It seems your father's estate consists of a reversionary interest in the house at some future date less a £80k debt.
    Since your mother as joint owner would have been party to this £80k mortgage can it be established without doubt that the debt is entirely your father's?
    Somehow the mortgage will need to be dealt with.
    If you apply for probate you will claim inheritance of your fathers estate. Would that then enable you to become a joint legal owner with you mother and pay off the mortgage?
    Has the ex-partner made a formal claim? Has that claim put any restrictions on your father's estate?
    I can't see how applying for probate puts you in any worse situation that you are at the moment.


    Thank you for you reply, excellent points.

    When he passed, my mother removed his name as Legal Owner on the property, leaving her as the sole legal owner (we thought about adding myself on as well) however a solicitor didn't think it would be advantageous as this stage. Land Registry aren't satisfied with dealing in the 25% beneficial interest until letters of administration can be shown.

    "Reversionary right" is an accurate enough description of my fathers claim/ estates claim to the 25% beneficial interest, which is essentially a chargeback at some future date pending the triggering events. However as the triggering events precede any chargeback of the 25% to his estate, the £80k debt is first dealt with either by cash (myself/mother) or by selling the property, clearing the 80k and THEN the net proceeds are split 75/25.

    Now the estate would contain 25% of the value from the net proceeds of the property sale where the claimaint (ex-partner) can put forth her claim. She is claiming for all of it at the moment, via her solicitors, under the 1975 act for cohabitation.

    But my solicitor warned me that I were to remortgage or pay the 80k debt in 3 months, the court order for the triggering events would cease (as it is somehow incumbent on the existing mortgage/outstanding liability on the property.

    From the legal papers I have now dating back to the divorce and the court orders, and the mortgage papers, only my father is soley listed as the mortgage owner, not my mother and the lender won't deal with her except to pay for arrears./

    If I apply for probate, it allows me to deal better with the lender via letters of administration in remortgaging or paying directly, and with the land registry in removing any restrictions to sell the property (standard property restrictions for tenants in common) and to assume my fathers previous position on the 25%.. I can't inherit it...as per the court order/ triggering events.

    I am in the same situation as my dad when he was alive.

    The ex partner put forth her claim, I had something called a caveat in place to block any attempts to deal with probate without my authority, and she caused it to become permanent, removable by court order only... essentially delaying my ability to do probate till it was removed.

    She has since allowed me to remove the caveat, so I can start probate. My solicitor also seems to think probate would be a good idea right now.

    The way he described the 25% as it stands was " the nominal value of the beneficial interest is what somebody would be prepared to pay now based on the life expectancy of somebody aged 54 years of age. I doubt there is a market for such interests opener which illustrates the point that there is no immediate right to the 25% by the estate, or anyone."
  • edited 15 June 2019 at 2:41PM
    Adams18Adams18 Forumite
    109 posts
    edited 15 June 2019 at 2:41PM
    I'm probably being thick, but wouldn't it be very unusual for the divorce order from 20 years ago to provide for the mother's death, but not the father's?


    That seems bonkers to me, but I know nothing about divorce law.


    Perhaps the OP can post the relevant wording as requested in the other thread.
    I am not surprised as this was to do with the triggers for the occupation of the property.

    Following divorce proceedings an order provided for the transfer of the property from my father to the my mother with a chargeback of 25% to him not to be enforced until either the my mothers death or remarriage. My father must have !!!!ed of the judge or something.

    A later order amended the above order to provide instead for the transfer of the property into the joint names of my mother and my father (following divorce proceedings) as tenants in common as to 75/25 HOWEVER as the same terms as the above order with the chargeback clause.


    The lender, I believe, figured well... no hold on a moment... we won't let my father be removed from his responsibility in the house as the one who took out the mortgage, so they still have him on the mortgage account and send out frequent correspondence in his name. They wont deal with my mom. They will either sell and get their money, or expect to be paid by my father. Or through probate/myself. And no i haven't told them he died yet because I am waiting till I can pay before risking anything. I live here.
  • Tom99Tom99 Forumite
    5.4K posts
    1,000 Posts Second Anniversary
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    Did your father have any other assets?
    You say the house is worth £500k so say 25%=£125k.
    But subject to a life interest for a 54yr old.
    The value of that interest is going to be way below the £80k debt
    You apply for probate giving a value of that interest as lets just say £40k but with a debt of £80k.
    Is that not going to help your case in defeating the claim on his estate?
  • edited 15 June 2019 at 3:19PM
    Adams18Adams18 Forumite
    109 posts
    edited 15 June 2019 at 3:19PM
    Tom99 wrote: »
    Did your father have any other assets?
    You say the house is worth £500k so say 25%=£125k.
    But subject to a life interest for a 54yr old.
    The value of that interest is going to be way below the £80k debt
    You apply for probate giving a value of that interest as lets just say £40k but with a debt of £80k.
    Is that not going to help your case in defeating the claim on his estate?

    He has no other assets that I or the claimant, supposedly, knows about. She lived with him for 15 years.

    It's worth 125k as of now, if it were accessible. The claimant doesn't yet know about the chargeback clause, I've only just told her solicitor last week, in the hopes of discouraging her for her claim and hopefully she drops the case.

    "The value of that interest is going to be way below the £80k debt"

    "You apply for probate giving a value of that interest as lets just say £40k but with a debt of £80k"


    What do you mean by the above? You mean the value accumulated on the 25% over the period my mother remains alive versus £80k?

    So you mean to say 40k minus 80k = -40k in the estate to discourage claimaint, as there is not much in it for her?

    From the very beginning, I didn't realise the chargeback/court order ....so I posited to the claimant that the estate was really 125k (current value of 25%) minus 80k (debt)... and not worth the effort.


    "Is that not going to help your case in defeating the claim on his estate?"

    Could very well do, I await the response from the claimant about the court order... and I am thinking to do probate myself... however I don't know if I can class this as a reasonably "uncomplicated" estate however, i hope it is simple enough to apply.
  • getmore4lessgetmore4less Forumite
    39.4K posts
    Part of the Furniture 10,000 Posts Name Dropper I've helped Parliament
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    If there is no caveat now one possible scenario

    Get the grant

    estate gets 25% less mortgage value.

    Mother gets 75%+mortgage value

    If you can buy the estates beneficial interest then you have the house.

    Estate has cash.

    Then you argue out the beneficiary of the estate.
  • Sea_ShellSea_Shell Forumite
    3.9K posts
    1,000 Posts Fifth Anniversary Name Dropper Hung up my suit!
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    Who's been paying the mortgage currently and from whose account??

    You say you haven't notified the lender that your father's passed away yet, but what about his bank accounts?
    " That pound I saved yesterday, is a pound I don't have to earn tomorrow ":beer: JOB DONE!!
    This should now read "It's time to start digging up those Squirrelled Nuts"!!! :j:j:j
  • Adams18Adams18 Forumite
    109 posts
    Sea_Shell wrote: »
    Who's been paying the mortgage currently and from whose account??

    You say you haven't notified the lender that your father's passed away yet, but what about his bank accounts?


    I pay the interest component, just hand to my mother cash and she pays it somewhere to the account via deposit.

    I definitely dealt with his bank accounts, and closed them, even though several thousand were siphened off his bank account following his death, I reclaimed the money via fraud/police
  • Adams18Adams18 Forumite
    109 posts
    If there is no caveat now one possible scenario

    Get the grant

    estate gets 25% less mortgage value.

    Mother gets 75%+mortgage value

    If you can buy the estates beneficial interest then you have the house.

    Estate has cash.

    Then you argue out the beneficiary of the estate.

    Apologies, but I couldn't follow!
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