3 tenants in common - probate/mortgage

confusedofsussex

Can anyone help me, I am currently T-I-C with both my parents, I am an only child. My father died on 31/01/20, he had no money but the house we all own is worth about £200k (with a £24k mortgage left which I intend to carry on paying) he has two executors on will which he made in 1979 (who we don't see) placing his portion in trust, but mum and I as sole beneficiaries. Santander has written telling us we need to send them probate??, is this really necessary. I have filled in forms and sent to land registry as recommended by a friend to change land reg to mum and I. is probate really necessary as another cost we cant afford, surely the will and the fact we all on mortgage would suffice?? I appreciate any advice you can give me, thank you

lees80

Was there any insurance in place to settle the mortgage in the event of anyone's death?

Who's name is the mortgage in? 

confusedofsussex

This mortgage is in joint names and only I had life insurance to cover mortgage

Thrugelmir

Probate is a legal requirement. Don't confuse the role of executors of the estate and that of being beneficaries of the will. 
While you don't see the named executors have you informed them of your fathers demise. 

AdrianC

So before your father's death, the house was owned 33% by him, 33% by you, 33% by your mother.
His will leaves it in trust - not to you. So the house is now owned 33% by a trust, 33% by you, 33% by your mother - NOT 50/50 by you and her.

Whether you "see" these two named individuals or not is irrelevant - it is their legal responsibility to carry out the wishes in the will. It is their job to get probate. The only way that can be changed is if they both renounce that duty.
https://www.thegazette.co.uk/wills-and-probate/content/100321

If only one of them renounces, then the other one is still in post. Their deaths would have the same effect, but with less paperwork, of course.

I presume by the trust that you were <18 in 1979 when the will was written? A great example of why updating wills is a good thing... It may be worth investigating a deed of variation to the will, to remove the trust - since it seems pointless.
https://www.gov.uk/alter-a-will-after-a-death

Assuming the mortgage is in the joint names of the three of you, then you're going to need to remove your father from that. You may need to remortgage - in which case, you could extend that mortgage to help you cover the costs of the legal requirements arising from his death.

confusedofsussex

thank you I realise legally it is in trust, but in theory it is mum and I's, as I cannot see them wanting to get probate as they are not well off either would I be better off asking them to renounce their roles? my father agreed to give £100 for this role as will was written in 1979

confusedofsussex

AdrianC, I have just read the link you provided and answered my own question above

Bossypants

Echoing what Adrian said about looking into a deed of variation. When my grandfather died, he left most of his estate in a trust to benefit his second wife (my Dad's stepmother), with the capital to revert to my Dad once his stepmother had died. This didn't suit either my Dad or his stepmother, so since they were the only beneficiaries of the will, they were able to come to a private arrangement which didn't involve a trust, and apply to vary the will accordingly.

confusedofsussex

thank you, its all so confusing isn't it especially when you are grieving, I think I will have to see a solicitor a I cannot really cope with this by myself. I went to the bank/lender when I registered death and we spoke abut mortgage etc, and they basically said it was all ok as my parents held everything jointly, and then to get this letter has really thrown me in to a mess

xylophone

You have a mortgage from Santander - it is their requirement that you obtain probate.
In terms of the Land Registry, probate would not be required to remove your father's name from the register - the Form A restriction would remain in place.
It should not be difficult to obtain probate of what seems a very simple estate.
Ask the executors if they wish to renounce - if so, they can follow the set procedure.
https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2017/renunciation-as-executor-of-a-will/
It would then be possible for you and your mother (or you alone) to do it. If unsure, as you say you can engage a solicitor to deal with matters on your behalf.
He could also deal with the Deed of Variation such that  father's beneficial interest was left jointly to you and your mother, not to a Trust with you and your mother as beneficiaries.

confusedofsussex

thank you for you advice. I will look into your advice