Probate and selling a property that is Tenancy in Common 21 May at 9:45AM in Deaths, Funerals & Probate 24 replies 671 views

greg2022

My Dad died intestate last month.  As his only son, I have recently completed an online Probate application, to become Administrator, due there being no Will (which I have confirmed by completing a formal search through Certainty Wills). 

I have confirmed that no application for Probate (by my Dad) was made when my step mum died in January 2019.  She also died intestate, although a formal will search has not yet been completed.  My Dad simply continued living in the property until he died. 

The Title Register confirms my Dad and Step mum’s property was bought as Tenancy In Common.  For this reason, my Dad’s estate is 50% of the property; I have reflected that in the figures quoted when applying for Probate.  The total property value is below the IHT threshold. 

Is a separate probate application for Administrator required to manage my step mum’s estate (i.e. the other 50% of the property) before the house can be sold?  As I understand, this application would need to be made by a close relative.  My step mum has a surviving son; her daughter died last year but she had 2 children (now in their 30’s).  

After this is all completed, I believe that, following the rules of Intestacy, the combined Estate will be divided as follows - me (50%), my stepbrother (25%), my step mum’s grandchildren (12.5% each). 

Thank you very much for any advice.

Keep_pedalling

You need to contact your SM son as he will have to apply for LoA for her estate, without that you can’t sell the house, so you are going to have to work closely together.

Once sold your father’s share goes to you, your SB to her son to distribute between himself and his sisters children, 50% to home 25% each to the children. 

JGB1955

AIUI (and assuming that your stepmother lived in England or Wales) your father would have inherited all of your stepmother's estate upon her death.  If her estate exceeded £270K the following would apply:


The husband, wife or civil partner keeps all the assets (including property), up to £270,000, and all the personal possessions, whatever their value.
The remainder of the estate will be shared as follows:

• the husband, wife or civil partner gets an absolute interest in half of the remainder

• the other half is then divided equally between the surviving children

If a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.

See Intestacy - who inherits if someone dies without a will? - GOV.UK (www.gov.uk)

greg2022

JGB1955 said:

AIUI (and assuming that your stepmother lived in England or Wales) your father would have inherited all of your stepmother's estate upon her death.  

Due to the Tenancy in Common, my Step Mum's 50% share of the property did not automatically pass to my Dad.  That would only occur if they had been Joint Tenants.

JGB1955

greg2022 said:

JGB1955 said:

AIUI (and assuming that your stepmother lived in England or Wales) your father would have inherited all of your stepmother's estate upon her death.  

Due to the Tenancy in Common, my Step Mum's 50% share of the property did not automatically pass to my Dad.  That would only occur if they had been Joint Tenants.

But, unless your stepmother had made a will, the rules of intestacy come into play.... don't they?

shiraz99

JGB1955 said:

greg2022 said:

JGB1955 said:

AIUI (and assuming that your stepmother lived in England or Wales) your father would have inherited all of your stepmother's estate upon her death.  

Due to the Tenancy in Common, my Step Mum's 50% share of the property did not automatically pass to my Dad.  That would only occur if they had been Joint Tenants.

But, unless your stepmother had made a will, the rules of intestacy come into play.... don't they?

^This. Unless there was a will to determine where step mum's distinct share would be administered it would come under the rules of intestacy and end up with your Dad anyway.

greg2022

shiraz99 said:

JGB1955 said:

But, unless your stepmother had made a will, the rules of intestacy come into play.... don't they?

^This. Unless there was a will to determine where step mum's distinct share would be administered it would come under the rules of intestacy and end up with your Dad anyway.

Due to the Tenancy in Common, I hadn't actually considered that Intestacy rules could be applied to my Step Mum's estate before my Dad died because Probate for her had not been completed.

If that is correct and my Dad effectively inherited my Step Mum's estate (I'm still not convinced!) how would I overcome the restriction specified in the Title Register which specifies both as Proprietors and:
RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

shiraz99

greg2022 said:

shiraz99 said:

JGB1955 said:

But, unless your stepmother had made a will, the rules of intestacy come into play.... don't they?

^This. Unless there was a will to determine where step mum's distinct share would be administered it would come under the rules of intestacy and end up with your Dad anyway.

Due to the Tenancy in Common, I hadn't actually considered that Intestacy rules could be applied to my Step Mum's estate before my Dad died because Probate for her had not been completed.

If that is correct and my Dad effectively inherited my Step Mum's estate (I'm still not convinced!) how would I overcome the restriction specified in the Title Register which specifies both as Proprietors and:
RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

Probably something for the Land Registry rep - https://forums.moneysavingexpert.com/discussion/5685941/land-registry-questions

Flugelhorn

greg2022 said:

shiraz99 said:

JGB1955 said:

But, unless your stepmother had made a will, the rules of intestacy come into play.... don't they?

^This. Unless there was a will to determine where step mum's distinct share would be administered it would come under the rules of intestacy and end up with your Dad anyway.

Due to the Tenancy in Common, I hadn't actually considered that Intestacy rules could be applied to my Step Mum's estate before my Dad died because Probate for her had not been completed.

If that is correct and my Dad effectively inherited my Step Mum's estate (I'm still not convinced!) how would I overcome the restriction specified in the Title Register which specifies both as Proprietors and:
RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

that will be sortable by the LR - ask them as per the link above. 

Intestacy means that the first person to inherit is the surviving spouse

have to say this puts you in a tricky situation, sounds like your dad and stepmum intended to leave their halves to their repective children, however in not making wills the whole of the house has come to your father then to you. If he had died first it would have gone to step mum then to her children and grandchildren per stirpes.

is stepmum's son aware of this? would you want to do a deed of variation for them to have some of the proceeds of the house? 
 

greg2022

Flugelhorn said:

that will be sortable by the LR - ask them as per the link above. 

Intestacy means that the first person to inherit is the surviving spouse

have to say this puts you in a tricky situation, sounds like your dad and stepmum intended to leave their halves to their repective children, however in not making wills the whole of the house has come to your father then to you. If he had died first it would have gone to step mum then to her children and grandchildren per stirpes.

is stepmum's son aware of this? would you want to do a deed of variation for them to have some of the proceeds of the house? 
 

It's a can or worms!  In this new scenario where I inherit both Estates, I presume that Letters of Administration will still be required for my Step Mum - who would be entitled to apply?  My step brother would not be so inclined if he didn't inherit anything.  A Deed of Variation may be a good idea.

I'm not in regular contact with my step brother but I will let him know.  

Keep_pedalling

Keep_pedalling said:

You need to contact your SM son as he will have to apply for LoA for her estate, without that you can’t sell the house, so you are going to have to work closely together.

Once sold your father’s share goes to you, your SB to her son to distribute between himself and his sisters children, 50% to home 25% each to the children. 

Sorry total senior moment there, as she died intestate her half of the house would have passed to your father unless her share was worth over £250k in which case 50% above that value would go to her children. Your father and SM were extremely foolish not to make wills as the first to die would automatically disinherit their children.

In your shoes I would look at a deed of variation to undo the foolishness so that her child and grand children receive her share of the property.