House "In Trust" but still in name of deceased Mother

optimist?

My deceased Mothers Will states that her house should be held "In Trust" until such time as my brother, who lived with her, should decide that he no longer wants to live there, after which it should be sold and the proceeds divided between me, my brother and sister. Mother died three years ago and now he has made that decision but since her death the house is still registered in her name with the Land Registry - I believe it could not be changed to the ownership of my brother and I as executors.  Now that we need to sell the house what would be the sequence of events necessary to achieve that aim? Although I am now 73 and not in the best of health whatever is needed will be entirely my job as my brother is on the autistic spectrum with learning difficulties. To be honest, I knew she was leaving me a big problem as I have always considered the "Trust" aspect to be nothing more than a rather ephemeral "idea" with little or no legal standing. Any help or advice gratefully recieved.

dimbo61

Sorry but you need the help of a solicitor which will be needed to sell the house 

doodling

Hi,

For this you really want the advice of a ("STEP" qualified) solicitor.  The steps are simple but there may be complications - see below.

It doesn't matter that it is still in your mother's name providing that an executor of her estate is available to sign documents as required.  I can't think of any reason why the ownership couldn't have been changed to be in the names of the trustees but that doesn't matter now.

The trust is a real thing with real legal consequences.  Does your brother have full capacity (in the formal sense) to deal with this?  One of the reasons that you might want to involve a solicitor is to ensure that you as a trustee protect yourself from any comeback from your brother (or a solicitor acting on his behalf) - for example if he (or someone supporting him) feels that he has been forced out of the house against his will - reduced mental capacity makes this a potential concern in this case. This might mean that it is wise for him to have his own legal representation as the beneficiary of the trust in addition to you having a solicitor representing you as trustee.  Your solicitor will advise on the best approach.

optimist?

Thanks for responding. I had envisioned having to engage a solicitor at some point in the process but was trying to limit it to the actual sale - with me doing whatever necessary to change ownership. My reason is that a friend has been waiting nearly a year just to have the ownership of her home registered in her name -her husband died over fifteen years ago and was registered as the sole owner. I have no intention of having to go through that kind of marathon and paying a solicitor a years worth of retainers to do what I might be able to  do myself. My brother was left in situ, at his request, for three years to arrive at his own decision about staying in the house or not - we never pressured him either way- and now HE has approached US with the fact that he is unable to cope with the building or gardens (it is a big property). He WANTS to leave and find a smaller place nearer my sister and her family, so please don't get the idea that he is going to suddenly take us to court over anything. WE are doing as HE has asked us to do - extricate him from an untenable situation and settle him somewhere better, where he can cope. I was thinking of taking the house documents and the Will to the Land Registry and asking them how best to proceed as they surely must have some experience of similar situation from other people?

CSI_Yorkshire

Why do you need to change the ownership?

Your mother's estate can sell the house.

dimbo61

The delay for your friend is more to do with the huge backlog at the Land Registry than a solicitors  fault.
The Land registry will direct you to a solicitor.

doodling

Hi,

As @CSI_Yorkshire has said, there is no need to change the ownership of the house, it can be sold directly to the new owner by an executor / trustee.

This should be a simple transaction which whilst it may take significant calendar time for various reasons shouldn't cost much more than a normal house sale.

The reason I wrote what I did is that you brother's right to stay in the house has a value.  He may see that as negative but where there is reduced mental capacity it is possible that others might take a different view on his behalf.  I may be unnecessarily cautious but I strongly recommend that you discuss this with a solicitor.

optimist?

Thank you all, it is for comments like yours that I asked the question.  I appreciate that the Land Registry has a huge backlog post-Covid but still feel the need to clarify this change/don't change ownership issue with them in order to know what is the next step.

Our friend put her problem in the hands of a solicitor and not only has that made no difference to the backlog problem but he has been charging her for what he has allegedly been "doing" ever since.

Just to clarify the status of my brother: he is a Co-Executor of the estate, despite his problems, and does understand both what he wants and what has to be done to give him that.

Thanks again everybody, I will resurrect this thread if things go seriously off-plan but hope not to have to.

propertyrental

3 years? The LT backlog is not that  bad now. But was an application made to transfer it to you/brother?

If that is an application that is 'still pending', it can be expedited at the LR where a subsequent sale is being impacted.

But as advised, there's no reason the Executors can't transfer the property from the deceased's name to the new buyer's name. They just have to prove the death (death ceretificate) and their right as Executors to act.

I echo the warning above. Your brother may be legally deemed to have limited 'mental capacity', and appears, for whatever reason (........?) to be giving up a secure home in order to..... go where?

optimist?

You have misunderstood the situation. After Mothers death my brother stayed exactly where he had always been - in the family home, as he wished. No application was made to change ownership, nor has it been to date. No attempt was ever made to persuade him to stay OR to leave, I knew full well that he would have to discover for himself if he could or could not cope with running the property, and now HE has decided that it is not viable for him to go on trying to run a four bedroomed house with extensive gardens. On top of his job it is more than he can manage and he wants to move to a smaller property, which my sister and I will find for him nearer to her family- who can act as a more extensive support system for him. We are committed to looking after him the best way we can. He wants to give up that house for a less stressful option and that is his stated choice without prompting from anyone.

doodling

Hi,

I think I understand the situation quite well.  What you are missing is that as a trustee you will be expected to act in accordance with the aims of the trust.  If someone thinks that you have not done so then they could try to force you to restore the beneficiary to the position they were in before the trust was dissolved - i.e. you get to provide your brother with a rent free 4 bed house for the rest of his life.

Given that you probably don't have the cash lying around to do that and you don't even want to end up in a court case where that outcome is a possibility then my advice is that you check with a solicitor whether there is anything you should do to minimise that risk.

It is not me that you need to convince of your good intentions (you have already done so), it is a random member of a council social care team that might happen to be involved in your brother's life in 5 years time and for some reason sees you as depriving your brother of a financially secure home.

In the real world, it is a remote possibility but given the potential consequences to you, it is worth spending a little money to make sure that those consequences do not arise.