Waiting for grant of probate

Surrey_EA

phill99 wrote: »

When we submitted grant of probate application for my late Mothers house it took 9 months. Her affairs were very straight forward and simple.

That is astonishingly rare. A 'simple and straightforward' estate should not take 9 months to obtain probate.

Strongly suggests something affecting the process.

getmore4less

Deleted_User wrote: »

I my case the property is not owned by a husband and wife and they don’t live at the property. The deceased portion of the property is passing to their family. I would have thought probate is needed in this situation or am I wrong?

Makes no difference as long as there is at least one living legal owner they can sell the place without probate for any deceased owners.

It is the responsibility of the living owner to pass the relevant proceeds to the estate.

getmore4less

phillw wrote: »

Can you give evidence of this as that doesn't seem possible. If the share of the property is going to pass to whomever it was left in the will, how can that go through without probate?

House are effectively held as a trust by the legal owners for the benefitial owners.
Death cert is enough to remove a legal owner leaving any living owners is charge of the property and can sell it.

The beneficial ownership is seperate proceeds get passed to the estate.


One of the many posts by the land reg rep on MSE.
https://forums.moneysavingexpert.com/showpost.php?p=75214776&postcount=20

Read full thread for context.

It comes up here a lot regular readers should have seen a thread or two where this has been covered.

xylophone

See https://www.land-registry-documents.co.uk/information/joint-ownership-tennants/

As mentioned in the first paragraph, only the equitable title can be held as tenants in common. The legal title must and will always be held as joint tenants. This means that on the death of tenants in common where only one survivor remains, although the survivor does not acquire the equity share left by the deceased, he does become the sole owner of the legal estate. This means he and he alone has the right to deal with the legal title (sell, mortgage, gift etc). He holds the property on trust for himself and the beneficiaries under the deceased’s will.

In order to protect the beneficiaries, when joint proprietors originally decide to hold a property as tenants in common a restriction should be registered at Land Registry. Where the transfer to the proprietors indicates they wish to hold as tenants in common this restriction will be registered automatically. The effect of the restriction is that a disposition (i.e. a transfer or mortgage) by a sole proprietor cannot be registered.

To get past this restriction and sell the property, the sole surviving tenant in common can appoint a second trustee along with himself. This can be done either in the transfer or by a separate deed. The trustee then signs the transfer along with the proprietor and receives the sale proceeds jointly. It is then the responsibility of the trustee together with the surviving tenant in common to ensure that the beneficiaries receive their share. As long as the purchase money is paid to two or more trustees the purchaser is protected from any claim that the beneficiaries might have if they do not receive the money they are entitled to.

[Deleted User]

Thanks. That is what I needed. MASSIVE help. I've asked my solicitor to request the other party to appoint a trustee to deal with the deceased's name and the joint ownership restriction on the proprietorship register. Hopefully this will get sorted. Don't know why my solicitor never suggested it!

xylophone

The other party might appoint the executor of the deceased's estate to be the other Trustee.

The money could then be paid to the solicitor handling the transaction for the other party - he could pay the other party his share and hold on to the "estate" share until such time as the executor can provide details of the executor's account into which the money should be paid.