Can we legally sell parents house.

eddddy

To me, it sounds like the estate agent was being very sensible and prudent. I doubt the estate agent was giving legal advice.

Estate agents are required (by TPOS) to take reasonable steps to ensure that their client is entitled to sell the property.

According to the OP, the estate agent said there "may be a problem selling". 

Presumably the estate agent said that because they are not legally qualified to definitively say if there is or isn't a problem.

I guess the estate agent would want the OP to get advice from a solicitor, and then show a solicitor's letter (or other evidence) to the estate agent.



If that's the case, I think that's perfect behaviour by the estate agent. Some estate agents might have thought "Let's try selling it anyway, and see what happens during conveyancing".  And a prospective buyer might have wasted thousands of pounds on legal fees, mortgage application fees, survey fees - plus wasted a few weeks of their life - before finding out the OP wasn't entitled to sell.

bobster2

There are 2 keys aspects to this (as others have pointed out the lack of LR registration is not a major issue)..

1) As others have pointed out you will need Letters of Administration for your father-in-law.

2) Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died. Not just your mother-in-law.

user1977

bobster2 said:

Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died.

They've referred to the OPG, so England or Wales.

bobster2

user1977 said:

bobster2 said:

Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died.

They've referred to the OPG, so England or Wales.

OK - so in 2016 it would be first £270,000 of the estate to the spouse - then 50% of the remainder to the spouse and 50% to the children (or grandchildren).

sheramber

bobster2 said:

There are 2 keys aspects to this (as others have pointed out the lack of LR registration is not a major issue)..

1) As others have pointed out you will need Letters of Administration for your father-in-law.

2) Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died. Not just your mother-in-law.

The OP states 

My father in law passed away in 2016 my mother-in-law had signs of dementia and did not leave the house so my wife obtain probate for her as her father left no will. 

Keep_pedalling

sheramber said:

bobster2 said:

There are 2 keys aspects to this (as others have pointed out the lack of LR registration is not a major issue)..

1) As others have pointed out you will need Letters of Administration for your father-in-law.

2) Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died. Not just your mother-in-law.

The OP states 

My father in law passed away in 2016 my mother-in-law had signs of dementia and did not leave the house so my wife obtain probate for her as her father left no will. 

I misread that the first time round, although it is still rather ambiguous as later in the post they say they only have administration for MIL.

We need clarification on whether letters of administration were obtained for FIL or not.

poseidon1

Bookworm105 said:

 father was sole owner and died intestate 
your comment appears to be assuming law of survivorship flowing from a Joint Tenancy, that is irrelevant in this case.

who got what out of father's estate is based on the value of father's estate at date of death. The fact the spouse lived in the property is irrelevant.
We assume mother and father were legally married, so her entitlement under intestacy was to a fixed sum of money ("statutory legacy") plus all father's personal possessions and then 50% of the remaining value of the estate if the estate was more than the fixed amount. Any children then get the other 50% of the estate if it was above the threshold  (or nothing if it was below).

as the death was in 2016 it is impossible to now do a 'deed of family arrangement" as that has to occur within 2 years of death. 

the statutory legacy amount in 2016 was £250,000

pedantically therefore value of father's estate must be confirmed and exact accounting is needed of how it was distributed. Mother may well be sole owner of the property by virtue of it forming part of her monetary share, but if a high property value, the children may (technically) be owed a monetary sum that they never got because the estate's money was locked up in the house and was not available to be paid in cash. If the latter applies, then technically the children would be legal co-owners of the property from date of father's death 

Bottom line is the children are now the sole owners of the property by virtue of inheritance from one or both parents.

Bookworm105 I do find it refreshing reading some of your posts, which often indicates a greater than average degree of technical knowledge as evident in the present thread.

I am in agreement with you on this in that there are apparent complications here which are going to interfer with a sale of the property prior to implementation of the FR1 first registration process, which does not look at all straightforward despite the physical exsistence of the property deeds.

What the OP may well hit as a potential hurdle is to what extent LR are of view that an  unbroken 'chain of representation ' has been previously  established to permit  FR1 initiated by the OP's wife to sail through smoothly.

In this regard I found a recent thread again related to unregistered property below quite illuminating -

https://forums.moneysavingexpert.com/discussion/6589536/transferring-property-to-beneficiary#latest

The LR representative's responses  on the 21st February 7.33am probably sums up what the OP's wife in the present instance will have to establish when commencing the first registration process.

From my reading of LR's perspective on this, it appears in the present instance the death of the father in 2016 was the first 'trigger event' that required compulsory  first registration of the property pursuant to then transferring legal title ( by deed of assent )  to the beneficiary ( or beneficiaries) - See point 2 of the guidance note below  -

https://www.gov.uk/government/publications/first-registrations/practice-guide-1-first-registrations#:~:text=Registration is compulsory on transfers,property with a negative value)

 Clearly  in the present instance the OP's wife apparently obtained the letters of administration for the father's estate with no thought towards dealing with the statutory requirement to register the property  and transfer the legal ownership at that point, thereby leaving administration of the estate incomplete . One questions at that point whether she obtained any legal advice related to her duties.

As you pointed  out , the husband's intestacy does not automatically mean the widow inherits the property  ( far from it). So it will be necessary to go back and ensure the father's net estate was within  the £250k limit permitting the widow to inherit everything outright, and if not a deed of family arrangement  ( within the time limits ) was implemented by the children  who may have acquired equitable interests in the property via their intestacy rights.

All in all, OP's wife has put cart before horse in marketing the property for sale prior to addressing   first registration requirements since clearly legal title to the property stops with the deceased father, and  may now result in a complex paper trail to establish the unbroken  'chain of representation' ( for LR purposes) given there are two intestate  unadministered estates in question. 

Referral to a specialist solicitor on unregistered land matters seems to be long overdue here.

 Certainly I cannot see how the OP's wife can undo by herself the 'gordian knot' she created by failing to complete the administration of the father's estate.

silvercar

As you pointed  out , the husband's intestacy does not automatically mean the widow inherits the property  ( far from it). So it will be necessary to go back and ensure the father's net estate was within  the £250k limit permitting the widow to inherit everything outright, and if not a deed of family arrangement  ( within the time limits ) was implemented by the children  who may have acquired equitable interests in the property via their intestacy rights.

If the children have acquired a share of the property, this may trigger a CGT liability when it is sold.

Bookworm105

bobster2 said:

user1977 said:

bobster2 said:

Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died.

They've referred to the OPG, so England or Wales.

OK - so in 2016 it would be first £270,000 of the estate 

not in 2016, statutory legacy at that date was £250,000
IHTM12122 - Succession: intestacy: distributions (England & Wales): statutory legacy - HMRC internal manual - GOV.UK

bobster2

Bookworm105 said:

bobster2 said:

user1977 said:

bobster2 said:

Depending on the country you are in, the value of his estate, the value of the property and the number of children he had - due to the rules of intestacy it may be the case that ownership of the property should have been transferred to a number of people after he died.

They've referred to the OPG, so England or Wales.

OK - so in 2016 it would be first £270,000 of the estate 

not in 2016, statutory legacy at that date was £250,000
IHTM12122 - Succession: intestacy: distributions (England & Wales): statutory legacy - HMRC internal manual - GOV.UK

Yes - sorry - thanks for correcting.