Death of tenant in common

Bobziz

Hopefully a simple one for those in the know.

Situation: My mum and dad owned their residential property as tenants in common, with the associated form A restriction. Dad recently passed leaving his half of the property to mum. Mum has lost mental capacity and lives in a nursing home. My sisters and I have an EPA for mum.

Question: We will eventually sell the property, and having browsed similar posts on the forum, it appears that the appropriate course of action is to complete land registry docs DJP, RX3 and ST5. What I'm struggling to determine is whether we can complete ST5 on mums behalf as her EPA's, and if so, how we go about doing that. LR guidance is unclear in this regard.

Many thanks..

xylophone

 My mum and dad owned their residential property as tenants in common, with the associated form A restriction. Dad recently passed leaving his half of the property to mum. Mum has lost mental capacity and lives in a nursing home.

See https://forums.moneysavingexpert.com/discussion/comment/70654796/#Comment_70654796

https://forums.moneysavingexpert.com/discussion/comment/74345153#Comment_74345153

As your mother has lost capacity, presumably you have registered the EPA with the OPG?

https://www.mylawyer.co.uk/enduring-power-of-attorney-a-A76050D35440/

https://www.bbc-law.co.uk/legal-news/attorney-powers/

Bobziz

xylophone said:

 My mum and dad owned their residential property as tenants in common, with the associated form A restriction. Dad recently passed leaving his half of the property to mum. Mum has lost mental capacity and lives in a nursing home.

See https://forums.moneysavingexpert.com/discussion/comment/70654796/#Comment_70654796

https://forums.moneysavingexpert.com/discussion/comment/74345153#Comment_74345153

As your mother has lost capacity, presumably you have registered the EPA with the OPG?

https://www.mylawyer.co.uk/enduring-power-of-attorney-a-A76050D35440/

https://www.bbc-law.co.uk/legal-news/attorney-powers/

Thank you. The EPA is indeed registered, but I'm still unclear how we can act on mums behalf in dealing with the LR. At.some point it appears that the form A restriction will need to be lifted, and for that they will need mums signature or that of her EPA.

xylophone

At.some point it appears that the form A restriction will need to be lifted, and for that they will need mums signature or that of her EPA.

You have the power to deal with your mother's  financial affairs and sign as Attorney.

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

Your mother became sole legal owner on your father's death.

The effect of his will is to make her sole beneficial owner as well.

See https://forums.moneysavingexpert.com/discussion/6103714/joint-tenants-or-tenants-in-common-or-cancel-form-a-for-iht#latest

Poster  MayQueen's parents were tenants in common and her father's will left his interest to her mother.

Linton

Bobziz said:

xylophone said:

 My mum and dad owned their residential property as tenants in common, with the associated form A restriction. Dad recently passed leaving his half of the property to mum. Mum has lost mental capacity and lives in a nursing home.

See https://forums.moneysavingexpert.com/discussion/comment/70654796/#Comment_70654796

https://forums.moneysavingexpert.com/discussion/comment/74345153#Comment_74345153

As your mother has lost capacity, presumably you have registered the EPA with the OPG?

https://www.mylawyer.co.uk/enduring-power-of-attorney-a-A76050D35440/

https://www.bbc-law.co.uk/legal-news/attorney-powers/

Thank you. The EPA is indeed registered, but I'm still unclear how we can act on mums behalf in dealing with the LR. At.some point it appears that the form A restriction will need to be lifted, and for that they will need mums signature or that of her EPA.

? I thought you were her EPA?

Bobziz

xylophone said:

At.some point it appears that the form A restriction will need to be lifted, and for that they will need mums signature or that of her EPA.

You have the power to deal with your mother's  financial affairs and sign as Attorney.

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

Your mother became sole legal owner on your father's death.

The effect of his will is to make her sole beneficial owner as well.

See https://forums.moneysavingexpert.com/discussion/6103714/joint-tenants-or-tenants-in-common-or-cancel-form-a-for-iht#latest

Poster  MayQueen's parents were tenants in common and her father's will left his interest to her mother.

Thank you. That's helped to clarify legal and beneficial ownership. 

Apologies, I think I've not worded my question very well. So I now understand that mum will become the legal owner and sole beneficiary. However, in order to lift the form A restriction and sell the property on her behalf, we, as her attorneys need to complete the statutory declaration ST5, but It's unclear what wording is required in the form itself e.g. where do we say we're signing as her attorney. It does say that if the person is unable to sign then a conveyancer/solicitor can certify. So, I imagine that this will be the easiest thing to do, and we'd just need to show the solicitor the EPA at that time. 

Final question, I cannot see anywhere in any guidance, that the executor will be required in dealing with any of this. Is this understanding correct ? it's important because it's very likely that the executor will be overseas at the time of sale.

Many thanks all, much appreciated.

xylophone

The form has ample space to explain how your mother becomes sole beneficial owner - you can send a copy of the will, (probate if you have it)  your father's death certificate and the EPA which (as you have registered it) will now have been officially endorsed by the OPG?

I don't quite see where the executor comes in with respect to the sale of the property.

On your father's death, your mother became sole legal owner. Despite the Form A restriction, she  (or her Attorney) could have sold the property  at that point by appointing a second Trustee - see first link above.

As things stand, she has become the sole beneficial owner as well.  She (her Attorneys on her behalf) can proceed with the sale?

You will anyway be engaging a  solicitor to deal with the sale?

Linton

xylophone said:

The form has ample space to explain how your mother becomes sole beneficial owner - you can send a copy of the will, (probate if you have it)  your father's death certificate and the EPA which (as you have registered it) will now have been officially endorsed by the OPG?

I don't quite see where the executor comes in with respect to the sale of the property.

On your father's death, your mother became sole legal owner. Despite the Form A restriction, she  (or her Attorney) could have sold the property  at that point by appointing a second Trustee - see first link above.

As things stand, she has become the sole beneficial owner as well.  She (her Attorneys on her behalf) can proceed with the sale?

You will anyway be engaging a  solicitor to deal with the sale?

Perhaps the estate has not yet been formally distributed?

Bobziz

Thanks both. No the estate has not been distributed yet as we only received probate last week. The executor can sort everything before she leaves the country in November (including  two variations of the Will, which Xylophone and others on this forum have kindly helped me with), but we're not anticipating having sold the house by then. However, as you've confirmed, the executor is not required for the house sale. We'll use a conveyancer and will get them to certify in place of my mother completing the ST5. This seems preferable to sending off the original EPA or getting the solicitor to certify a copy. 

As a side note, life would be so much easier if there were a central electronic register of POA"s that other GOV depts and financial institutions could search, rather than needing to see hard copy originals or certified copies. 

xylophone

Perhaps the estate has not yet been formally distributed?

Immaterial in respect of the sale of the property.
See  https://www.land-registry-documents.co.uk/information/joint-ownership-tennants/

"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."

relaxtwotribes

Bobziz, just a question if I may, please, why was the property owned as tenants in common if Dad's will left his half to Mum?  Why not hold the property as joint tenants?  Just asking. Anyone?