Which Takes Presidence?

RetSol

Ooo. Interesting. (Aunt has a son.) All of her children and grandchildren were alive when she wrote her will. All of the assumptions and behaviours have been it passes through the generations rather than was split 7 ways when she died.  Certainly uncle and father's estates were calculated on the basis that they had a 1/3 share rather than 1/7.

This is why you need to see the will.  The original post made it sound as though the property may have been left to grandma's children and grandchildren.  Exactly who is included will depend on the terms of the will. 

If the house is in Scotland and the will was made in Scotland, that will have a bearing as Scottish property law and probate law are different from those in England.  It may not effect the outcome but the process of registering the ownership and transferring the house will be different.  You will need to instruct Scottish solicitors to deal with the formalities. 

naedanger

HappyScotsman said:

theoretica said:

Because your dad was alive when your gran died the 1/3 house became his and went to your mum according to his will.

So "descendants" is a red herring in this context? Gran wrote her will while both my parents were alive. If my mum had gone first, the share of the house would have gone direct to me anyway, if dad had gone first, it would have gone to my mum, then to me. Would it only have been a problem if either of my parents has specifically called out where the share of the house was to go that contradicted "descendants"?

Your grand-mother's Will should state what is to happen to the house on her own death. However after the house had been passed on then its new owners would not be legally constrained by her Will. (So even if you grand-mother was aiming to ensure that those who inherited a share of her house should in turn pass it on, on their death, to their descendants she could not achieve this aim.)

Was the Will a diy Will? If not then the phrase "per stirpes" is often used to explain the most common division if there are different generations amongst the beneficiaries.

Also have the current owners considered what is to happen to the property e.g. on your aunt's death? It seems to me a bit unsatisfactory for the property's ownership not to be properly recorded, and for so many of its owners to derive no benefit from it.

HappyScotsman

p00hsticks said:

HappyScotsman said:

RetSol said:

https://www.gov.uk/search-will-probate

Getting the will is easy enough - my aunt has it.

Presumably a copy, not the original - or did your grandmothers estate not go though probate (or the Scottish equivalent) ?

Does whether my aunt holds the original or copy matter? And yes, it went through your equivalence of probate. 

RetSol

Does whether my aunt holds the original or copy matter? And yes, it went through your equivalence of probate. 

It may be prudent to obtain a copy of the will from the probate registry (or Scottish equivalent).  

Do not necessarily rely on the document which your aunt has - it my not be a copy of the actual will.  You need to see the will on the basis of which "probate" was granted. 

HappyScotsman

naedanger said:

Was the Will a diy Will? If not then the phrase "per stirpes" is often used to explain the most common division if there are different generations amongst the beneficiaries.

Also have the current owners considered what is to happen to the property e.g. on your aunt's death? It seems to me a bit unsatisfactory for the property's ownership not to be properly recorded, and for so many of its owners to derive no benefit from it.

No, not a DIY will. It would have been done by the family solicitors.

My understanding is that there is no particular benefit to be gained from registering the property when there is no intention to sell. Two separate sets of Scottish solicitors have handled estates including their share and have not pressed to update the deeds. None of the grandchildren need to benefit from the house so we will no doubt leave it as is until my aunt passes.

As my original query was whether the share should be included in my mother's estate, I think this thread has answered it, at least for this stage in the process. 

MovingForwards

https://www.scotcourts.gov.uk/taking-action/frequently-asked-questions/your-questions-on-dealing-with-a-deceased's-estate#:~:text=The court will only have,court or HM Commissary Office.

Obtain a copy of the grant of confirmation, that will provide you with a copy of the will. When you've obtained those come back and read what everyone else has said. Ask any questions you're unsure of but you will have to provide the exact wording from the will which was submitted to court, assuming the family did apply for probate and not just leave it all hanging.

Part of the problem you face is CGT for those not living in the property when they died.

naedanger

HappyScotsman said:

naedanger said:

Was the Will a diy Will? If not then the phrase "per stirpes" is often used to explain the most common division if there are different generations amongst the beneficiaries.

Also have the current owners considered what is to happen to the property e.g. on your aunt's death? It seems to me a bit unsatisfactory for the property's ownership not to be properly recorded, and for so many of its owners to derive no benefit from it.

As my original query was whether the share should be included in my mother's estate, I think this thread has answered it, at least for this stage in the process. 

Yes - answered. It should have been included in your mother's estate. I think, in your position, I would speak to the solicitor who handled the estate about it. 

naedanger

MovingForwards said:

Part of the problem you face is CGT for those not living in the property when they died.

I agree the CGT point, but it is only an issue when someone not living in the property sells their share not on their death.

RetSol

My understanding is that there is no particular benefit to be gained from registering the property when there is no intention to sell. 

In principle, that is probably correct.

However, you may wish to investigate now the issue of who can sell the property when the time comes.  If the aunt is your grandmother's sole, surviving executor, she probably "owns" the property (solely in her capacity as executor).  Or, at least, this would be the position under English law - I don't know about Scottish law.  

The question however is: as matters stand, what will be the position when she dies regarding selling the property and will that be satisfactory?  What will happen if, before she dies, she loses capacity and the beneficiaries want to sell up?  

Is there a potential for future inconvenience which could be avoided by registering the property in the name of a couple of trustees now?  As has been suggested, you may wish to discuss this with family solicitors. 

Apologies for raising issues which you have not asked about but you seem to have thought about this yourself and, as your aunt ages, these questions may become more important. 

p00hsticks

HappyScotsman said:

p00hsticks said:

HappyScotsman said:

RetSol said:

https://www.gov.uk/search-will-probate

Getting the will is easy enough - my aunt has it.

Presumably a copy, not the original - or did your grandmothers estate not go though probate (or the Scottish equivalent) ?

Does whether my aunt holds the original or copy matter? And yes, it went through your equivalence of probate. 

Part of the (English) probate process is that the original signed will is sent to the probate office and retained by them. People can then apply to the probate office for copies. I'm not familiar with the Scottish process but certainly in England the original will would have to have been lodged with the probate office if probate had been applied for.