Will Trust and Ownership of Property

RetiredAndlovingIt

Mother & Father lived in house as Tenants-in-Common.

Mother died in September 2022.  Her Will stipulated her half of the house was to be left in Trust for Father and Me.

Following Mother’s death, Solicitor registered the Will Trust in August 2023, naming FATHER and ME as both Trustees and Beneficiaries.  As Lead Trustee, I later claimed the trust (having first registered for a Government Gateway account). 

At the same time as setting up the Will Trust, the Solicitor completed Land Registry TR1 naming FATHER and ME as Joint Tenants (50% to Father absolutely, and 50% to FATHER and ME in equal shares).

Land Registry Title Register summary states

Registered owners:  FATHER and ME

B. Proprietorship Register states:

Class of title: Title Absolute

(Entry Dates are all October-2023)

Entry No. 1: Proprietor:  FATHER and ME

Entry No. 2: Restriction:  (standard text of Restriction A)

Entry No. 3: A transfer to the proprietor contains a covenant to observe and perform the covenants referred to in the register and of indemnity in respect thereof.

 

Father died in March 2024.

I cancelled the Will Trust (on the advice of Solicitor)

 

My question is this;

As the Property is/was the subject of a Will Trust, am I actually currently the owner of 25% of the property, or do I have to wait until after Probate is granted before I become the owner of the Property?

I need to clarify this for Probate purposes and also as my local Council has written to me asking for the names of all owners of the property and I do not know whether or not to include myself as an owner.

Any advice gratefully received.

doodling

Hi,

What you describe is rather odd.  Usually the spouse is the beneficiary of the trust (whilst they are still alive) and on their death the assets of the trust are left to the remaindermen (the ultimate beneficiaries).

If the trust created by your mother's will identifies both you and your father as remaindermen then (assuming a 50/50 split) his estate will end up owning 75% of the house and you 25%.

At the moment, the house is owned 50% by your father's estate (actually his executor on trust for his beneficiaries) and 50% by a different trust (actually you as trustee), on trust for the beneficiaries of that trust (which you say are you and your father's estate).

As trustee of the first trust you need to wind that up and transfer the assets in the trust to the remaindermen (which includes you and your Dad's estate - i.e. his executor).  Your Dad's executor then needs to distribute his estate as per your Dad's will.  In reality the transfers I describe are notional - you need to work together with your Dad's executor to ensure that the assets end up in the right place, there is no need to update the land registry until it is clear what is going where (and if the house is to be sold then it only gets updated when that happens).

As I said at the start, please re-read your Mum's will, it is unusual for the spouse to be both the beneficiary and a remainderman.

doodling

Hi,

Just to add, I may have been misled by all the stuff you have quoted from the land registry and it is just you who is the remainderman for the trust created by your Mum's will.  In that case, whilst at the moment the house is owned 50/50 by the estate and the trust, the 50% owned by the trust will come to you.

The whole value of the house is included in your Dad's estate (and will affect IHT if relevant) but I think the existence of the trust needs to be correctly identified on the probate forms (I haven't done these recently so not sure on that point).

RetiredAndlovingIt

Thank you for your response doodling. I apologise if my initial post was confusing but I thought adding all the information might help to clarify things but it appears to have had the opposite effect!

Land_Registry

From a purely registration perspective the legal ownership has passed to you following your Father’s death. Probate is not required to deal with and update the land register. Form DJP and death certificate are sufficient. 

The form A restriction, most likely applied for to protect the trust/beneficial split you refer to is presumably no longer needed if you are the sole legal and beneficial owner. You can apply to cancel the form A restriction using forms RX3 and ST5 
Our PG 6 explains and links you to the forms. 

https://www.gov.uk/government/publications/devolution-on-the-death-of-a-registered-proprietor