Probate query 30 December 2022 at 8:45PM in Deaths, funerals & probate 18 replies 874 views

Erimgorf

Father passed away 2016 leaving his share of the family home to myself and sister, who also happen to be the executors of the will. I have the original will. No solicitors have been involved.

Probate Office advised no need to pursue probate until the passing of the surviving spouse.

My mother attempted to sell the house without my knowledge but this stalled due to my late father's interest on the deeds as Tenants in Common.

Mother died recently. I believe that I am not likely to be a beneficiary in my mother's will, however I don't know for certain since we were estranged. I understand her brother is the executor of her will.

I have contacted my sister who lives abroad regarding pursuing probate of our father's will but she is not responding to my contact. I have not heard from her in many years.

I am estranged from the remaining family.

I need to ensure that when my mother's will is being administrated that my father's will is also executed.

How can I ensure that my father's will is not overlooked during the processing of my mother's estate?

Thank you.

Keep_pedalling

You don’t need probate for your father now. Did his will give your mother a life interest in his share of the house?

Erimgorf

I understand I will need probate as there is property involved that needs to be sold. Previously the probate service said to wait until my mother dies before applying for probate.  There was no life interest expressed on the will.

Keep_pedalling

Erimgorf said:

I understand I will need probate as there is property involved that needs to be sold. Previously the probate service said to wait until my mother dies before applying for probate.  There was no life interest expressed on the will.

That is unfortunate, a life interest would be the normal way to do things as it would not need probate and would avoid the issue of the beneficiaries having a CGT liability when the house is eventually sold. If his share of the property exceeded £325k at the time of death then IHT would have been owed as without a life interest to his wife his bequest would not have been exempt.

So yes I believe you are correct in that probate is required for your father’s estate and I think the advice you got was poor, it would have been far better to do it at the time as you now have the issue of getting your sister to renounce or reserve powers if she is unable apply with you.

You will need to work with your mothers executor in order to get the house sold once you both have probate.

Alphatauri

You may find it useful to sign up to Land Registry’s property alert service as this will notify you if the property is being sold e.g. searches etc. https://www.gov.uk/guidance/property-alert

getmore4less

Probate only needed for the last surviving owner. Dad's probate not needed.

Death certificate of dad and probate for mum will be sufficient to deal with the legal title by the executor of mums will.

At time of dad's death new owners or trustees should have been added to the title to protect the beneficiaries of dad's will.

You will need to liaise with the executor of mums will to secure your beneficial interest.

Lucky the sale failed as it would have been possible for her to succeed with a little more planning.


If value of property gone up you will have a CGT assesment to deal with if there was no life interest.

getmore4less

Keep_pedalling said:

Erimgorf said:

I understand I will need probate as there is property involved that needs to be sold. Previously the probate service said to wait until my mother dies before applying for probate.  There was no life interest expressed on the will.

That is unfortunate, a life interest would be the normal way to do things as it would not need probate and would avoid the issue of the beneficiaries having a CGT liability when the house is eventually sold. If his share of the property exceeded £325k at the time of death then IHT would have been owed as without a life interest to his wife his bequest would not have been exempt.

So yes I believe you are correct in that probate is required for your father’s estate and I think the advice you got was poor, it would have been far better to do it at the time as you now have the issue of getting your sister to renounce or reserve powers if she is unable apply with you.

You will need to work with your mothers executor in order to get the house sold once you both have probate.

Still no need for probate for dad as legal title passed to joint owner.
(Legal title is always joint tenants)

There may be the need for an IHT return on that dad's estate.

The benefitial interests don't need a grant, it's down to the executor/trustees on mums estate to ensure estate distribution is done properly.

Erimgorf

Just to clarify - as per the original post ... the property is registered with the Land Registry as Tenants in Common 50/50 and ownership has not transferred to anyone else following the first death.

getmore4less

Erimgorf said:

Just to clarify - as per the original post ... the property is registered with the Land Registry as Tenants in Common 50/50 and ownership has not transferred to anyone else following the first death.

First death certificate puts the legal ownership into last surviving owner.

Probate for that person on death has total control of the legal interest in the property.

Erimgorf

getmore4less: are you sure you aren't confusing Tenants in Common with Joint Tenants? ...

https://www.gov.uk/joint-property-ownership

Joint tenants

As joint tenants (sometimes called ‘beneficial joint tenants’):

• you have equal rights to the whole property
• the property automatically goes to the other owners if you die
• you cannot pass on your ownership of the property in your will

Tenants in common

As tenants in common:

• you can own different shares of the property
• the property does not automatically go to the other owners if you die
• you can pass on your share of the property in your will

getmore4less

Erimgorf said:

getmore4less: are you sure you aren't confusing Tenants in Common with Joint Tenants? ...

https://www.gov.uk/joint-property-ownership

Joint tenants

As joint tenants (sometimes called ‘beneficial joint tenants’):

• you have equal rights to the whole property
• the property automatically goes to the other owners if you die
• you cannot pass on your ownership of the property in your will

Tenants in common

As tenants in common:

• you can own different shares of the property
• the property does not automatically go to the other owners if you die
• you can pass on your share of the property in your will

Makes no difference legal ownership is only ever joint tenants.

Probate only needed for last surviving legal owner to deal with a property.

Beneficial ownership can be joint or TIC.

Land reg practice guide 24 might help.

https://www.gov.uk/government/publications/private-trusts-of-land/practice-guide-24-private-trusts-of-land