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death in family tennant in common
Comments
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As the Land Registry representative said it is not as simple as you make out Time you stopped trying score points and tried to help people.getmore4less wrote: »Including the official from the land registry that process the legal titles?0 -
Yorkshireman99 wrote: »As the Land Registry representative said it is not as simple as you make out Time you stopped trying score points and tried to help people.
The key point is probate is not required.
Telling people probate is required is not helpful
The rest of the process is the same as it is totally independent of the grant as that is not needed0 -
I have added a 4th question:
[FONT=Verdana, sans-serif]1 The legal interest is now owned by them from the date of death even though if they downloaded the title today it would list two owners, OP and mother?[/FONT]
[FONT=Verdana, sans-serif]2 The mother's estate does not therefore have any legal ownership?[/FONT]
[FONT=Verdana, sans-serif]3 The OP cannot sell that legal interest unless they appoint someone with them. How would that work in the OP's case? Is probate needed to sell the property or, for example can brother be the someone else?[/FONT]
[FONT=Verdana, sans-serif]4 What is the current beneficial ownership? Is it OP 18% mother's estate 82% or OP 59% brother 41%? That will be of interest to the OP as there will be a disposal of the OP's interest which needs reporting for CGT.[/FONT]
[FONT=Verdana, sans-serif]
[/FONT][FONT=Verdana, sans-serif]If the answer to No 3 is 'anyone' who is it likely to be? The brother? Or could it be the mother's estate?
[/FONT]
Anyone means anyone,
It could be the brother, the executor of the estate, a solicitor or anyone.
Typically it is often the estate administrator or a party interested in the beneficial interest, they don't need a grant to deal with the legal or beneficial interest.
The legal owners are trustees, most of the time it is for themselves but in cases where one dies it can be for others as in this very typical case.
forgot to answer q4.
The beneficial ownership initially lies with the survivor and the estate, then depending on the wording of the will and administration process the estates beneficial ownership will pass at some point to the beneficiaries as any normal estate process.0 -
[FONT=Verdana, sans-serif]I am sorry to keep coming back with more questions but this is a subject which often crops up on the forum time and again and a range of answers are given, often correct but sometimes not, but never completely covering all options.[/FONT]getmore4less wrote: »Anyone means anyone,
It could be the brother, the executor of the estate, a solicitor or anyone.
Typically it is often the estate administrator or a party interested in the beneficial interest, they don't need a grant to deal with the legal or beneficial interest.
The legal owners are trustees, most of the time it is for themselves but in cases where one dies it can be for others as in this very typical case.
forgot to answer q4.
The beneficial ownership initially lies with the survivor and the estate, then depending on the wording of the will and administration process the estates beneficial ownership will pass at some point to the beneficiaries as any normal estate process.
[FONT=Verdana, sans-serif]Since tax, CGT and Stamp Duty for example, are based on beneficial ownership it is very important to understand who is the beneficial owner at various stages of an estates administration.[/FONT]
[FONT=Verdana, sans-serif]So far we seem to have clarified that following the death of one joint owner the surviving joint owner (whether held as joint tenants or tenant is common) become the sole legal owner.[/FONT]
[FONT=Verdana, sans-serif]Therefore the estate does not have any legal ownership it can administer and probate is not required.[/FONT]
[FONT=Verdana, sans-serif]You say the legal owner are the trustees so at that point in time there is only one trustee, the surviving joint owner.[/FONT]
[FONT=Verdana, sans-serif]You say that initially the beneficial ownership lies with the survivor and the estate so the survivor holds the legal title on trust for themselves and the estate. So not on behalf of themselves and the beneficiaries of the estate. Ie in the OP's case they hold it on trust 18% for themself and 82% for the estate.[/FONT]
[FONT=Verdana, sans-serif]We have established that the estate does not require probate and probate may not be required if other cash assets are small.[/FONT]
[FONT=Verdana, sans-serif]The estate does not seem, therefore, to have any administrative role to play in the property but if, as you say, the estate has a beneficial interest, in this case 82%, this still has to be dealt with.[/FONT]
[FONT=Verdana, sans-serif]The OP's property is to be sold and the OP will make a capital gain which needs to be reported so they will need to know whether at the time of sale their beneficial ownership is 18% or 59%.[/FONT]
[FONT=Verdana, sans-serif]It would seem to me there are three possible outcomes:[/FONT]
[FONT=Verdana, sans-serif]1 – The estate transfers the beneficial ownership to OP and brother before the sale, so OP will own 59%. This seems completely unnecessary so I only mention it as an option.[/FONT]
[FONT=Verdana, sans-serif]2 – The administration period of the estate ends because 'the residue of the estate has been ascertained'. Therefore the two beneficiaries become the beneficial owners i.e. the OP will own 59% for CGT purposes. This could happen quite quickly if its only cash left for the estate to deal with.[/FONT]
[FONT=Verdana, sans-serif]3 – The property is sold before No 2 happens so for CGT purposes the OP sold 18%. Bearing in mind that the property is often the very last thing for the estate to administer it is more likely than not that No 2 will have occurred before the property is sold. [/FONT]0 -
Why should I believe you when my solicitor says you do?getmore4less wrote: »The key point is probate is not required.
Telling people probate is required is not helpful
The rest of the process is the same as it is totally independent of the grant as that is not needed0 -
[FONT=Verdana, sans-serif]The Land Reg Rep has already clarified that probate is not required if there is a surviving joint owner, in order to deal with the legal title. This applies whether held as JT or TIC, but if TIC then the survivor will need another party to joint in to effect a sale of the legal interest, but still probate is not required.[/FONT]Yorkshireman99 wrote: »Why should I believe you when my solicitor says you do?
[FONT=Verdana, sans-serif]Since the Land Reg deal with this problem every day and I expect your solicitor does not then, on balance, I think we should take the Land Reg Rep's word for it.[/FONT]0 -
I have added a 4th question:
[FONT=Verdana, sans-serif]1 The legal interest is now owned by them from the date of death even though if they downloaded the title today it would list two owners, OP and mother?[/FONT]
[FONT=Verdana, sans-serif]2 The mother's estate does not therefore have any legal ownership?[/FONT]
[FONT=Verdana, sans-serif]3 The OP cannot sell that legal interest unless they appoint someone with them. How would that work in the OP's case? Is probate needed to sell the property or, for example can brother be the someone else?[/FONT]
[FONT=Verdana, sans-serif]4 What is the current beneficial ownership? Is it OP 18% mother's estate 82% or OP 59% brother 41%? That will be of interest to the OP as there will be a disposal of the OP's interest which needs reporting for CGT.[/FONT]
[FONT=Verdana, sans-serif]
[/FONT][FONT=Verdana, sans-serif]If the answer to No 3 is 'anyone' who is it likely to be? The brother? Or could it be the mother's estate?
[/FONT]
I'm only going to answer the 4 Qs here and not add anything re the wider posts/comments that followed. The reason, for emphasis, is that we register and deal with the legal ownership. The beneficial ownership re wills, % shares, inheritance, CGT is not something we deal with
1 and 2 The legal ownership has passed to the surviving joint owner, the OP. The death is factual whether the register has been updated or nit. That is not intended to be cold or disrespectful but emphasising you deal with the facts
3 If there is a form A restriction registered then the sole surviving owner cannot sell/mortgage, namely receive capital monies (£), when dealing with the property. To deal with the 'sole' aspect they can appoint someone to act with them
I imagine most would appoint someone directly involved with the estate but there is no legal requirement to do so from a registration perspective so it could be anyone.
4 As mentioned we don't deal with the beneficial ownership so could not tell you. In some scenarios when the form A was registered joint owners may state the % shares. But because we don't record the % shares they may change for a whole variety of reasons after the form A is registered. Something for those directly involved to work out and calculate and prove as appropriate and where needed.“Official Company Representative
I am the official company representative of Land Registry. MSE has given permission for me to post in response to queries about the company, so that I can help solve issues. You can see my name on the companies with permission to post list. I am not allowed to tout for business at all. If you believe I am please report it to forumteam@moneysavingexpert.com This does NOT imply any form of approval of my company or its products by MSE"0 -
Thank you. Perhaps I did not ask a sufficiently accurate question of my solicitor. I am happy to accept your answer.Land_Registry wrote: »I'm only going to answer the 4 Qs here and not add anything re the wider posts/comments that followed. The reason, for emphasis, is that we register and deal with the legal ownership. The beneficial ownership re wills, % shares, inheritance, CGT is not something we deal with
1 and 2 The legal ownership has passed to the surviving joint owner, the OP. The death is factual whether the register has been updated or nit. That is not intended to be cold or disrespectful but emphasising you deal with the facts
3 If there is a form A restriction registered then the sole surviving owner cannot sell/mortgage, namely receive capital monies (£), when dealing with the property. To deal with the 'sole' aspect they can appoint someone to act with them
I imagine most would appoint someone directly involved with the estate but there is no legal requirement to do so from a registration perspective so it could be anyone.
4 As mentioned we don't deal with the beneficial ownership so could not tell you. In some scenarios when the form A was registered joint owners may state the % shares. But because we don't record the % shares they may change for a whole variety of reasons after the form A is registered. Something for those directly involved to work out and calculate and prove as appropriate and where needed.0 -
[FONT=Verdana, sans-serif]I am sorry to keep coming back with more questions but this is a subject which often crops up on the forum time and again and a range of answers are given, often correct but sometimes not, but never completely covering all options.[/FONT]
[FONT=Verdana, sans-serif]Since tax, CGT and Stamp Duty for example, are based on beneficial ownership it is very important to understand who is the beneficial owner at various stages of an estates administration.[/FONT]
[FONT=Verdana, sans-serif]So far we seem to have clarified that following the death of one joint owner the surviving joint owner (whether held as joint tenants or tenant is common) become the sole legal owner.[/FONT]
[FONT=Verdana, sans-serif]Therefore the estate does not have any legal ownership it can administer and probate is not required.[/FONT]
[FONT=Verdana, sans-serif]You say the legal owner are the trustees so at that point in time there is only one trustee, the surviving joint owner.[/FONT]
[FONT=Verdana, sans-serif]You say that initially the beneficial ownership lies with the survivor and the estate so the survivor holds the legal title on trust for themselves and the estate. So not on behalf of themselves and the beneficiaries of the estate. Ie in the OP's case they hold it on trust 18% for themself and 82% for the estate.[/FONT]
[FONT=Verdana, sans-serif]We have established that the estate does not require probate and probate may not be required if other cash assets are small.[/FONT]
[FONT=Verdana, sans-serif]The estate does not seem, therefore, to have any administrative role to play in the property but if, as you say, the estate has a beneficial interest, in this case 82%, this still has to be dealt with.[/FONT]
[FONT=Verdana, sans-serif]The OP's property is to be sold and the OP will make a capital gain which needs to be reported so they will need to know whether at the time of sale their beneficial ownership is 18% or 59%.[/FONT]
[FONT=Verdana, sans-serif]It would seem to me there are three possible outcomes:[/FONT]
[FONT=Verdana, sans-serif]1 – The estate transfers the beneficial ownership to OP and brother before the sale, so OP will own 59%. This seems completely unnecessary so I only mention it as an option.[/FONT]
[FONT=Verdana, sans-serif]2 – The administration period of the estate ends because 'the residue of the estate has been ascertained'. Therefore the two beneficiaries become the beneficial owners i.e. the OP will own 59% for CGT purposes. This could happen quite quickly if its only cash left for the estate to deal with.[/FONT]
[FONT=Verdana, sans-serif]3 – The property is sold before No 2 happens so for CGT purposes the OP sold 18%. Bearing in mind that the property is often the very last thing for the estate to administer it is more likely than not that No 2 will have occurred before the property is sold. [/FONT]
The situation is no different to any other estate, the 18% is a beneficial interest outside the estate.
The rest is just as you would deal with with any estate, the value for CGT is reset to DOD and normal procedure applies depending on the wording of the will and Admin period determines how that part gets taxed either in the estate or as individuals, the tax position for the op should they gain full beneficial interest will be done in 2 parts with different base values.0 -
[FONT=Verdana, sans-serif]I think there is a great deal of difference between an estate where there is a (1) surviving joint owner, as in the OP's case, and (2) where there was no joint owner.[/FONT]getmore4less wrote: »The situation is no different to any other estate, the 18% is a beneficial interest outside the estate.
The rest is just as you would deal with with any estate, the value for CGT is reset to DOD and normal procedure applies depending on the wording of the will and Admin period determines how that part gets taxed either in the estate or as individuals, the tax position for the OP should they gain full beneficial interest will be done in 2 parts with different base values.
[FONT=Verdana, sans-serif]In (2) which would be typical of estate for say the 2nd parent to die. The estate is the legal owner and the executor will appoint estate agents solicitors, sign the sale contract and transfer, receive and distribute the sale proceeds – quite a lot of work to do.[/FONT]
[FONT=Verdana, sans-serif]In (1) the OP's case' the estate plays no role at all in selling the house this is all done by the survivor who may not be an executor under the will and may not be a beneficiary under the will or intestate.[/FONT]
[FONT=Verdana, sans-serif]So the situation of surviving joint owner v no joint owner, are very different.[/FONT]0
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