Son/daughter names were added to house deeds - do we need probate?

RAS

bicyclist said:

RAS said:

You certainly need to know what the conveyancer have and then take advice from someone who understands CGT, not finances.

With regard to SDLT, there is a very good advisor on the house buying and sell forum here who has saved several people a lot of money by referring them to exceptions in the regulations about which their conveyancer/solicitor knew nothing. And helped others understand their increased liability. 

For example if either of you doesn't yet own your own home, you cannot now be a first time buyer for SDLT purposes.

One of us owns a home, the other does not (though did in the past). Neither of us are resident at mum's property (although one may have been in the past but I'm not sure - certainly more than 25+ years ago if so).

I'll take a look at the house buy/sell forum. Thanks.

OK, so neither would be losing FTB status. 

Tiglet2

bicyclist said:

GrumpyDil said:

Firstly you need to check if you own as tenants in common or joint tenants.

That said if your mum simply added you to the title and assuming you are not living in the property, when you come to sell it you will be liable to pay Capital Gains Tax on the increase in value between the date of transfer to you and the date of sale.

I can see nothing that mentions 'tenants' in any context, however under Proprietorship Register on the certificate under 'Title absolute' it lists mum, myself and my sister as Proprietors.

Under that, it says "RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court."

The property was owned as Tenants in Common - the Restriction on the title confirms it, but along with that there should have been a Declaration of Trust setting out the percentage of ownership that each of the three of you have. The Declaration of Trust is not sent to the Land Registry, but should have been held by your late mother, or perhaps the solicitor who acted in the transfer 10 years ago.   In the absence of one, it will be assumed that you owned 33.3% each.

poppystar

As you are Tenants in Common you can sell the property without needing probate - so if it not needed for anything else that is one less task for you. 

noitsnotme

poppystar said:

As you are Tenants in Common you can sell the property without needing probate - so if it not needed for anything else that is one less task for you. 

Won’t they need probate to be able sell the mothers third share?

poppystar

noitsnotme said:

poppystar said:

As you are Tenants in Common you can sell the property without needing probate - so if it not needed for anything else that is one less task for you. 

Won’t they need probate to be able sell the mothers third share?

Nope. They’ll need a n other person to sign some paperwork (sorry forget the term and I can’t access the paperwork from here) but other than that extra step it will just be part of the conveyancing. Several of us have done this already with no problem and no cost. 

Edited to add>

https://www.beswicks.com/legal-advice/what-happens-one-tenant-in-common-dies/

Link explains in more detail than I can at the moment, hopefully it helps. 

SoozyJ22

I think it was a TR1 form that I signed as the additional trustee. We didn't need probate to sell the house, but did need it before the solicitors would release the deceased's share of proceeds from the house sale to the estate. 

poppystar

SoozyJ22 said:

I think it was a TR1 form that I signed as the additional trustee. We didn't need probate to sell the house, but did need it before the solicitors would release the deceased's share of proceeds from the house sale to the estate. 

Oh, that’s interesting. Were the solicitors executors in your case or maybe they just wanted to be extra cautious? The money was transferred into my account as executor on the day of the sale - by the conveyancing solicitor. I didn’t use a solicitor for any other aspect of that estate so I guess the conveyancer was happy that the ultimate responsibility lay with me and the person who acted as the additional trustee. I did get probate for other aspects of the estate but that wasn’t granted until a month later. 

bicyclist

poppystar said:

SoozyJ22 said:

I think it was a TR1 form that I signed as the additional trustee. We didn't need probate to sell the house, but did need it before the solicitors would release the deceased's share of proceeds from the house sale to the estate. 

Oh, that’s interesting. Were the solicitors executors in your case or maybe they just wanted to be extra cautious? The money was transferred into my account as executor on the day of the sale - by the conveyancing solicitor. I didn’t use a solicitor for any other aspect of that estate so I guess the conveyancer was happy that the ultimate responsibility lay with me and the person who acted as the additional trustee. I did get probate for other aspects of the estate but that wasn’t granted until a month later. 

poppystar said:

SoozyJ22 said:

I think it was a TR1 form that I signed as the additional trustee. We didn't need probate to sell the house, but did need it before the solicitors would release the deceased's share of proceeds from the house sale to the estate. 

Oh, that’s interesting. Were the solicitors executors in your case or maybe they just wanted to be extra cautious? The money was transferred into my account as executor on the day of the sale - by the conveyancing solicitor. I didn’t use a solicitor for any other aspect of that estate so I guess the conveyancer was happy that the ultimate responsibility lay with me and the person who acted as the additional trustee. I did get probate for other aspects of the estate but that wasn’t granted until a month later. 

All the above is very interesting (if just a little confusing!), especially as possibly not needing probate. Can someone advise what we need to sort this out? A solicitor, conveyancer (is that a thing?), financial advisor… Thanks. 

SoozyJ22

poppystar said:

SoozyJ22 said:

I think it was a TR1 form that I signed as the additional trustee. We didn't need probate to sell the house, but did need it before the solicitors would release the deceased's share of proceeds from the house sale to the estate. 

Oh, that’s interesting. Were the solicitors executors in your case or maybe they just wanted to be extra cautious? The money was transferred into my account as executor on the day of the sale - by the conveyancing solicitor. I didn’t use a solicitor for any other aspect of that estate so I guess the conveyancer was happy that the ultimate responsibility lay with me and the person who acted as the additional trustee. I did get probate for other aspects of the estate but that wasn’t granted until a month later. 

That's interesting. The solicitors were just the conveyancers for the house sale which had been agreed before the death, but didn't exchange until afterwards. The only executors were the three beneficiaries and we (well two of us) have done everything ourselves with no solicitor involvement. We had to show them the original will and death certificate at first (prior to adding second trustee), then probate certificate when we had that. They also needed an ID check on the third executor - the other two of us were the other owner and second trustee so had already been verified during the sales process. The amount in question was large (high six figures) so I don't know if that makes any difference. 

SoozyJ22

bicyclist said:

All the above is very interesting (if just a little confusing!), especially as possibly not needing probate. Can someone advise what we need to sort this out? A solicitor, conveyancer (is that a thing?), financial advisor… Thanks. 

I think it would be a conveyancing solicitor. As I said in my later reply to poppystar, that was the only solicitor involvement we've had in the process. So it seems it would be up to them to say whether they'll need probate to release the funds or not.