Probate

SVts

Hi all 

I'm looking for some advice on whether probate is required in the following situation;

My father and mother bought a house in 1975 in which my father still lives(value 280k). 
Both my father and mother are named on the title deeds.
2009 my mother wrote her will stating that in the event of her death that her 50% ownership will be transferred equally to her daughter and son. 
Sadly my mother died in 2015.

My father has recently been advised by a friend to think about probate to tidy everything up.

Neither I or any other family member seem to have any idea on how probate works so I am hoping for a little advice on whether probate is required at this time.

Many thanks. 

Keep_pedalling

Sorry to answer a question with another one but, dis the will also give your father the right to live in her share of the house? If it did, the will would have created an immediate post death interest trust which changes things somewhat. 

SVts

Keep_pedalling said:

the will also give your father the right to live in her share of the house?

Not sure anything like that is mentioned in the will. He has 50% not sure what else I can add.

RAS

That means you need to download the deeds from the Land Registry site (£7) to confirm that the property was held as tenant in common.

And get a copy of your mum's will. 

Keep_pedalling

SVts said:

Keep_pedalling said:

the will also give your father the right to live in her share of the house?

Not sure anything like that is mentioned in the will. He has 50% not sure what else I can add.

You need to be certain of this so you need to look at the will.

There are significant advantages to creating an immediate post death interest trust rather than leaving a share of the marital home absolutely to children. It a voided creating a CGT liability to the children and avoids them loosing their first time buyer status or having to pay additional tax when they do buy  their own property and provides much greater security for the surviving spouse.

For these reasons this would be the normal way of approaching this rather than a direct bequest to your children. The first thing you need to establish is exactly what the will says. If it says he has a right to live there then the will has created a trust which is the legal owner and your father retains beneficial ownership. You and your sibling only actually inherit on the death of your father. If this is the case then it sounds like the trust is long overdue to be registered with HMRC.

If your mother did leave it directly to you then yes you are going to need probate to alter the land registry. 

I am assuming here that the property was held as TIC so as RAS points out check the LR as well.

p00hsticks

SVts said:

Both my father and mother are named on the title deeds.

AS RAS says, the first step, if you haven't already done so,  is to confirm that the property was held as tenants in common rather than joint tenants. (If joint tenants, then it would automatically pass to the survivor , regardless of what the deceased stipulated in their will)

Flugelhorn

Deeds are the way to go - have a look at them online and see of there is a form A restriction listed, if not then they were probably joint tenants and there would be no 50% to leave to the children as it was all to the surviving spouse

SVts

Ok thanks for the replies.

Presuming the following is correct would there be any benefit from probate?

The deeds show tenants in common.
Both myself and my sibling have no desire to benefit from the property whilst my father is alive.
Both myself and my sibling have an excellent relationship with my father.

Thanks.

Keep_pedalling

SVts said:

Ok thanks for the replies.

Presuming the following is correct would there be any benefit from probate?

The deeds show tenants in common.
Both myself and my sibling have no desire to benefit from the property whilst my father is alive.
Both myself and my sibling have an excellent relationship with my father.

You still need to look at the will, because it will dictate how you proceed. If you actually own part of the property then yes you should get probate and you will need to get a valuation of the property at the date of your mother’s death. It is this valuation that will determine how much CGT you will need to pay when the house is eventually sold.

If on the other hand the will created a trust that needs to be registered with HMRC and late registration can lead to fines.

Although you may have no desire benefit from your inheritance while your father is alive things can still happen that can adversely impact his security if he does have beneficial ownership of the whole house, such as you dying, going bankrupt or getting divorced.

who are the executors of her will?

cherry76

I would contact Land Registry to ask whether probate is required to alter the register. My husband left his 50% in a will trust and me as life tenant. . LR advised me that as a sole survivor I can use form TRI to add their names on the title deed as beneficiaries. I thought if I do that, they will registered as legal,owners and will,lose their first time buyer status. Not sure which one is right.

RAS

@cherry76 have the executors registered the IPDI trust with HMRC, as that needs doing within 2 years of your husband's death?