Death of a tenant in common

greco_2

Nine years ago, my MiL gifted her property to my wife and her two brothers. The older brother passed away recently.

When my MiL arranged the transfer, she stipulated to her solicitors that the transfer was to be for the benefit of her children - something which the solicitors concerned agree upon. Following the death of their brother, my wife and the surviving brother expected that the deceased brother's share would pass to them in accordance with their mother’s wishes - in other words, as joint tenants. The solicitors say that this is not so and that the children of the deceased will inherit his share as the property passed as tenants in common.

We have pointed out to the solicitors that the share of the  property should not pass to the grandchildren but they maintain that this is how the trust was drawn up and cannot be changed. They maintain that they have done nothing wrong. 

There is no correspondence to show that the alternatives were explained to my MiL at the time and although we have repeatedly requested the solicitors to let us have copies of all correspondence, they have failed to do so. My MiL is very upset that her surviving children will not receive the full share of the property.

We are considering our next move and whether we should use the services of the Legal Ombudsman or instruct solicitors to deal with the matter.

Thoughts of other forum members would be appreciated.

sheramber

Do your or your MIL have a copy of the trust document?

Slinky

Good lord, your nephews/neices have lost their father and their grandmother wants them to lose out on what would have most likely been their inheritance at some point anyway. Words fail me.

propertyrental

Where a property is owned by Tenants In Common, if one owner dies, their share (which in this case may or may not be 1/3rd) passes either according to the deceased's will (if there is one, and TIC should always write a will for exactly this reason) or if no will then according to the laws of intestacy.

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

https://www.gov.uk/inherits-someone-dies-without-will

Whilst there may be a case for bringing an action against the solicitors for .... incompetence? I doubt it could alter the legal position. And of course we don't really know what discussions took place at the time between your MIL and her solicitor. The property was transferred into the names of her children, as she desired, but whether the implications of a death were explained and/or understood, we really don't know.

greco_2

Slinky said:

Good lord, your nephews/neices have lost their father and their grandmother wants them to lose out on what would have most likely been their inheritance at some point anyway. Words fail me.

Words fail me too. It would have helped if you had read and understood the post before responding. FWIW, my MiL has lost her oldest child, my wife and BiL have lost a brother, my SiL has lost her partner in tragic circumstances. The nephews will receive a massive inheritance with or without their share of their grandmother's property. It is not about that at all. I should report you.

greco_2

sheramber said:

Do your or your MIL have a copy of the trust document?

Only an unsigned draft which the solicitors have sent.

Slinky

greco_2 said:

Slinky said:

Good lord, your nephews/neices have lost their father and their grandmother wants them to lose out on what would have most likely been their inheritance at some point anyway. Words fail me.

Words fail me too. It would have helped if you had read and understood the post before responding. FWIW, my MiL has lost her oldest child, my wife and BiL have lost a brother, my SiL has lost her partner in tragic circumstances. The nephews will receive a massive inheritance with or without their share of their grandmother's property. It is not about that at all. I should report you.

I read the post and see no mention of the 'massive inheritance' you refer to now.

Feel free to report me.

loubel

If MiL gifted the property to her children then she had no say in how they owned it. It would be usual for siblings to own as tenants in common though. Do the children not have some records of the correspondence from their solicitors, which would be expected to explain their options on ownership.

Albermarle

Does the MIL still live there?
There might be some wider implications around inheritance tax and deprivation of assets.

As a general point the more threads I read about these sorts of situations, the more I am convinced that giving property away whilst still alive, or even stipulating it in a will, is usually a pretty bad idea.

stuhse

If all involved believe this was the case then the unexpected beneficaries could perhaps just gift the house back to the expectant remaining brother and sister.  I dont undertsand why you are surprised the deceased brothers assets will pass onto to his children and not to his brother and sister.  I care for my sister greatly, but she doesnt get a look in on my Will, my assets go to my children as i believe most people do ...When you die are you expecting your assets to pass to your children , or are you leaving them to your siblings ?  Why are the remaining brother and sister suprised ? The mother has passed her assets to her children..it is for them to decide how they are distributed after that  is it not ?  What does the MIL think...does she want to see one lot of her grandchildren disinherited too ?  Was the mother and all 3 children actually thinking when she transferred the house to the 3 of them that ultimately it would end up in the hands of just one of the 3 families....and not equally divided between the 3 families ?  

EssexHebridean

The situation around TIC is exactly as said already above. Had your MIL wanted to ensure that the property stayed with her children for as long as at least one of them was alive, then she should have selected the Joint Tenants option. It’s highly unlikely that both options were not explained to her at the time - indeed, most solicitors have a specific form that is sent out to ask a client/clients to make their choice - and that includes a description of the various options to choose between. 

If there was a trust deed drawn up to stipulate how things would work, then there should be 4 copies of that around at least - the one which was sent to your MIL, and the 3 that would have been sent to the other parties to the deed. I think your family need to start a thorough search through paperwork to find at least one of those documents, if you believe that it would have stipulated something other than a standard TIC arrangement. If such a document cannot be found, or appears to never have been finalised however, you may have to accept that your MIL made a poor choice originally, or perhaps should have asked for a better explanation of how things would work in the event of the death of one of the children. 

Albermarle said:

Does the MIL still live there?
There might be some wider implications around inheritance tax and deprivation of assets.

As a general point the more threads I read about these sorts of situations, the more I am convinced that giving property away whilst still alive, or even stipulating it in a will, is usually a pretty bad idea.

This is a valid point - although allowing the wording was that she gave the property away, I think most would take it that she moved out and the children took full ownership. 

* Edit* 

ok - I was think about this back to front this morning, I blame insufficient tea intake!

So - it’s the siblings who the house was transferred to who would have made the selection re Joint tenants/tenants in common.  While your MIL could have expressed an interest in now things were done, the actual declaration would have been made by the solicitor representing the siblings on registration.