Property Trust Will...when do I apply for Probate?

FletchUK

My mum and dad had been married for 50+ years when my mum passed away in 2015. They owned their house outright as tenants-in-common. Mum's Will stated that her 50% share of their house was to be left in trust for me and my sister and everything else (cash, savings, etc.) went to my dad. After my mum died the solicitor that holds my parents' Wills arranged for myself and my sister to be added to the Land Registry record for the house. I think my mum was removed at the same time.

My question is this: Neither myself or my sister applied for Probate when my mum died. Should we have done this or will Probate only be needed when my dad passes away and the remaining share of the house passes to me and my sister? I know we'll need Probate to sell the house after dad dies but I wasn't sure if we should have sought Probate before our names were added to the Land Registry record.

xylophone

 Your mother's will left your father an immediate interest in possession of her beneficial share of the property but named you and your brother as the ultimate beneficiaries?

 If so, while the property was owned as beneficial tenants in common, legally your parents were joint proprietors of the whole and therefore when your mother died, your father was the sole surviving legal owner - see here
https://www.land-registry-documents.co.uk/information/joint-ownership-tennants/

He did not need probate to have you and your sibling registered as joint proprietors in your capacity as Trustees of the IPDI Trust.

If any of the cash/savings left by your mother were in joint accounts with your father they would have passed to him by survivorship - otherwise, if they were below a certain threshold the banks  may have allowed him to access the monies without probate and seems to be what happened?

When your father dies, you (as surviving owners) will not need probate to have your father's name removed from the register/transfer it into your name/sell the property - see 
https://forums.moneysavingexpert.com/discussion/comment/78044672#Comment_78044672

However,  probate may be needed if there are other assets as the institutions holding them may not release them without probate, depending on their individual policies.

You will also need to establish if there is any IHT to pay on your father's estate after taking into account his Nil Rate Band, his Residence Nil Rate Band, your mother's transferable Nil Rate band and your mother's Transferable Residence Nil Rate Band.

Land_Registry

FletchUK said:

My mum and dad had been married for 50+ years when my mum passed away in 2015. They owned their house outright as tenants-in-common. Mum's Will stated that her 50% share of their house was to be left in trust for me and my sister and everything else (cash, savings, etc.) went to my dad. After my mum died the solicitor that holds my parents' Wills arranged for myself and my sister to be added to the Land Registry record for the house. I think my mum was removed at the same time.

My question is this: Neither myself or my sister applied for Probate when my mum died. Should we have done this or will Probate only be needed when my dad passes away and the remaining share of the house passes to me and my sister? I know we'll need Probate to sell the house after dad dies but I wasn't sure if we should have sought Probate before our names were added to the Land Registry record.

The legal ownership passed to Dad when Mum, a joint owner died. As such the property does not form part of your Mum’s estate so probate was not required. 

The same will apply if say Dad died as you/your sister are now also registered as joint owners. 

Probate is required to deal with a property when the sole surviving legal owner dies. It can also be required if the deceased’s estate includes other assets of course but as far as the property goes it’s as mentioned. 

The tenants in common, will, trust etc relates to their beneficial ownerships. That is dealt with separate from the legal ownership as whilst the former can be split the legal ownership has to be dealt with as a whole. 

Easiest way I find to explain it is that the legal ownership is the land and the bricks & mortar. You can’t have half each and half the kitchen, bathroom etc. 

The beneficial ownership is the value of the property so £s and pence. That can be split. 

Sea_Shell

Thinking ahead, do you and your sister share the same views as to what you might want to do with the property, when the time comes?