Probate, executors who lack capacity and property sale

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82142124#Comment_82142124

You will hit an hurdle with the online process when you tick no to the online question 'Are all executors able to make their own decisions'.

You are then directed to make a postal application since there is no facility to upload a completed PA14.

https://www.apply-for-probate.service.gov.uk/stop-page/mentalCapacity

NedS

https://forums.moneysavingexpert.com/discussion/comment/82142173#Comment_82142173

Great, thank you - that makes it perfectly clear as to the process I must follow. Really useful to know.

Cubicsrube

OP, just want to add to the excellent advice you have got here, that the Probate office will consider expediting an application where a property sale is in process. I was told this belatedly after initially waiting months and months. I immediately sent in evidence that we had accepted an offer on mum’s property a month before she died. That seemed to unblock it and we got probate within weeks.

I can’t remember if there was a place we could have noted that in our initial online application—I don’t think there was—but maybe that’s a silver lining to a postal application? You could put a cover note perhaps… (others who know more will no doubt pipe up if that’s a bad idea!)

NedS

https://forums.moneysavingexpert.com/discussion/comment/82142403#Comment_82142403

Thank you for that.

I think I will phone the probate office next week to seek guidance if a PA14 is required, and will ask at the same time if I can include a letter of offer from the estate agents or similar.

Land_Registry

You state that the property is jointly owned by your Mum and Dad as Tenants in Common. If that is the case then probate is not required for the actual property as the legal ownership passes to your Mum to deal with.

The TIC aspect may or may not have been protected on the register by way of a form A restriction. It does not affect the aforementioned fact but will restrict your Mum from selling the property on her own. In cases where a property is not to be sold and the deceased's beneficial share is held in trust whilst Mum remains in the property is fairly standard and many simply update the register re the death leaving the surviving owner as the sole registered legal owner with the form A restriction remaining and doing the job it was intended to do.

If the property is to be sold then Mum can appoint someone else to act with her to complete the sale. That could be the trustee(s) or anyone else provided she does not act alone - see PG 21 section 6 for guidance on how that can be done - Practice guide 21: using our forms for complex and more unusual transactions - GOV.UK

It's not an issue of which course of action is 'attractive' as you put it. But more an issue of identifying the difference between the legal and beneficial ownerships and whether probate is indeed required. If you apply for probate for Dad you will probably get it but it won't actually be needed if the property is registered in their joint names as explained.

As you are selling I assume you are using a conveyancer and as such I would have a chat with them first to confirm the registered position and how the surviving owner can appoint someone else to act with them and then together sell.

NedS

@Land_Registry Thank you so much for that, and that was also my general understanding from previous research although I still note nearly everyone just tells you that you need probate to deal with a property (seems like the standard response, probably because it covers all bases)

With regard to the details of the above, in order for mum to sell the property and appoint someone else to act with her, as you say, does that require the land registry title to be updated or can mum act now armed with the death certificate and a copy of Dad's Will showing his half of the property is left in trust (me and mum are the trustees)?

Where it says in the PG 21 section 6 that a new trustee will have to be appointed - does all this happen together as part of the conveyancing process in transferring the property from the sellers to the buyers, or is this something that must be updated and in place first before normal transfer from seller to buyer occurs? In other words, would it delay the conveyancing process or just be a natural (albeit a little more complex) part of it? Just trying to get an understanding of potential delays etc.

I will certainly raise it with my conveyancing solicitor. We are still at the confirming ID stage so haven't had the opportunity to chat yet.

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82144195#Comment_82144195

I had thought I had misread your intial post, but in checking you did clearly state your mother had lost capacity and you were in the midst of selling the property as attorney for both your mother and your father prior to his death.

Are you now stating that your mother has not lost capacity and therefore able to be proactive in moving the property sale on? If so it begs the question why you activated your POA and stepped in on her behalf in the first place.

I think at this point not withstanding LR's kind guidance, your best bet is to return to the conveyancing solicitor dealing with this transaction to ascertain ( definitively ) whether you can progress the sale in your current capacity without probate of your father's estate.

The responses you recieved on this forum with regard to the need for probate did turn on the combination of your mother having no capacity and your father's share tied up in a will trust of which she was also trustee/executor/beneficiary, but unfit for the decision making her trusteeship/executorship demanded.

Obviously if she does have full mental capacity that puts an entirely different spin on things.

NedS

https://forums.moneysavingexpert.com/discussion/comment/82144373#Comment_82144373

Sorry, I do not understand the relevance so it would seem I have clearly misunderstood something.

Correct, mum does not have capacity to make her own financial decisions, and I act as PoA (with a registered EPA) for her with regard to finances and property. Clearly it is in her best financial interests to be able to sell her property.

Where is says she can appoint someone to act with her in the sale, can her PoA not do the same on her behalf and appoint someone for her to act with her? Or does it have to be her acting with capacity (which is not the case here)

Or have I fundamentally misunderstood something?

Land_Registry

I can't comment on why people invariably say that probate is needed as we deal with the outcomes of such decisions-made and deal with an application to update the register as appropriate and on merit. For example if you submitted Dad's probate along with a Transfer by Mum we would simply view the probate as evidence of death as it wasn't needed for the property but may have been wanted for something else.

A death is sadly factual so that can be proven at any stage. A buyer will invariably accept a copy of the death certificate (or probate if obtained) to enable a transfer/sale by the surviving joint owner. So, no she/you don't have to update the register re the death. And we very rarely need to see the will as that is dealing with the beneficial ownership (his half of the value so to speak) rather than the legal ownership which has passed to Mum to deal with as explained.

PG 21 explains how the appointment can be made as part of the conveyancing process. No reason for delay if the guidance is follows but you need to speak to your conveyancer to confirm and to clarify their position also. For example they will need to consider the will/trust and what happens with the purchase monies as part of their role also.

poseidon1

https://forums.moneysavingexpert.com/discussion/comment/82144412#Comment_82144412

Thinking this through and in view of the LR's guidance, I believe what is required is for the beneficial interests under the trust to be overreached/bypassed by the appointment of a 2nd trustee permitting you to sell the property prior to legal recognition of the trust.

You would be stepping into your mother's shoes via the finance PoA to appoint the co trustee ( using Trustees Act 1925 powers) to complete the sale you are in the middle of.

Once sold the solicitor holds the proceeds in two parts, one part which can be transferred to your mother's personal account which you control as P oA on her behalf ( her personal TIC share), but the other part for the trust held in abeyance by the solicitor until you have proved the will ( via probate) to legally establish your status as trustee of the Will trust. I cannot see how you can legally take control of the will trust proceeds without the grant, but at least the sale has not been delayed in the meantime.

Hopefully the solicitor will confirm this is the process, and between you decide on the 2nd trustee required for conveyancing purposes.

In passing since it is not good practice for you to move forward as sole ( competent) trustee of the Will trust, you should deliberate on whether the 2nd trustee appointed for the property sale, should ultimately be considered suitable as your permanent co trustee of the continuing Will Trust.