Grant of probate

rexmonday · 19 August 2019 at 1:26PM

Hi all

Looking for a little bit of advice, if anyone would be so kind.

My mother passed recently, and having received her last will and testament she appointed myself and my father as executors/trustees.

The letter from the solicitor states the following:

Please note that your late mother owned a share in the property known as XXX and she wished to protect her share for the benefit of yourself and [her daughter and 4 grandchildren]. In order for you to deal with her share appropriately you should now obtain a grant of probate. Once the grant of probate is granted then you can take the necessary steps to register the trust with the land registry, in order to protect her share of the property and your father’s residing interest. I recommend that you now take the necessary steps to register the trust with the land registry, in order to protect her share of the property and your father’s residing interest. As discussed the trust is effective from the date your mother died and although we recommend that you register the trust you are obliged to do so.

My question is, is it necessary for me to obtain a grant of probate. The solicitor advises that I should, however, the .gov.uk states that:

You may not need probate if the person who died:
- had jointly owned land, property, shares or money - these will automatically pass to the surviving owners
- only had savings or premium bonds

Below is an excerpt from the will:

I appoint my husband XXX and my son XXX to be the Executors of this Will.
I appoint my Executors in the clause above (hereinafter called my Trustees, which expression shall include the Trustees for the time being hereof) to be both Executors and Trustees of this my Will.
I give my beneficial interest in the house known as XXX ('the House') with the furniture, curtains, carpets and other articles of household use or ornament in it ('the Effects') to my Trustees to hold them on trust for sale but with power to postpone the sale and in accordance with the following directions:
(a) My husband XXX ('the Occupant') may live in the House and use it as his principal place of residence and have the use of the Effects in connection with it for as long as he wishes.
(b) Until the Occupant has in the opinion of my Trustees ceased to be entitled under (a) to use the House as his principal place of residence neither it nor the Effects shall be sold without his consent but he shall pay all outgoings and keep it in good repair and insured to the satisfaction of my Trustees.
(c) When this trust ends my beneficial interest in the House and the Effects shall be divided as follows:
(1) 42% to my son XXX
(2) 42% to my daughter XXX
(3) 4% to my grandson XXX
(4) 4% to my granddaughter XXX
(5) 4% to my granddaughter XXX
(6) And 4% to my grandson XXX

Any advice or thoughts are welcome, and hugely appreciated

Thanks
Rex

Linton · 19 August 2019 at 1:44PM

Was the house owned "jointly" or as "tenants in common"? If it was held jointly it automatically goes to the other joint owner(s) outside the will and estate and your mother could not bequeath it to anyone else. This is the situation described in your gov.uk quote.

Assuming the will was drafted correctly and the house was held as "tenants in common" where mother and father each held say 50% of the house then mother could bequeath her % of the house to anyone she wanted to. In this case since the 50% isnt going to the other owner you will need probate to transfer it to a 3rd party which in this case appears to be The Trust.

Note that Mothers will only determines what happens to her 50%, Father could bequeath his 50% to the Cats Home or whoever he wished.

rexmonday · 19 August 2019 at 2:10PM

Thanks for the reply...

So, I've checked the will and the property was held as "tenants in common"

Does that mean my Mother's 50% has been split 42%, 42%, 4%, 4%, 4%, 4% as detailed? Will each party need to register their portion with the land registry?

Linton · 19 August 2019 at 2:32PM

rexmonday wrote: »

Thanks for the reply...

So, I've checked the will and the property was held as "tenants in common"

Does that mean my Mother's 50% has been split 42%, 42%, 4%, 4%, 4%, 4% as detailed? Will each party need to register their portion with the land registry?

From the will it appears nothing is split until Father no longer needs the house. I would expect the trust to sell the 50% house at that point and then distribute the proceeds in accordance with the will. Having 6 tenants in common (or 7 or more with the other 50%) would be a nightmare. Suppose one of them did not want to cooperate with the rest.

Whether anything needs to be or can be recorded with the land registry I dont know.

rexmonday · 19 August 2019 at 2:52PM

Thank you again. I'm almost certain that my Father's will is identical, in respect that his 50% share is split the same way, between the same people.

Who exactly is the 'Trust'? the 6 people that my mother's share is split by?

I guess, the ultimate question is, how do I register the trust with the land registry, and do I need a grant of probate in order to do so?

Linton · 19 August 2019 at 3:07PM

rexmonday wrote: »

Thank you again. I'm almost certain that my Father's will is identical, in respect that his 50% share is split the same way, between the same people.

Who exactly is the 'Trust'? the 6 people that my mother's share is split by?

I guess, the ultimate question is, how do I register the trust with the land registry, and do I need a grant of probate in order to do so?

A Trust is a separate entity, almost like another person. It can own property, pay taxes etc etc. It is controlled by its Trustees who are specified in the will and who must implement the duties as defined by the will. In this case the will gives the job to the Executors.

How you give the trust sufficient legal existance to hold the property I dont know - perhaps the solicitor could help there. You need probate to give the property to the Trust the same as if you were giving it to another person.

pip895 · 19 August 2019 at 4:35PM

Do you know why the share of the house was left to the trust? Is the joint estate likely to be above the total allowance or was your Mum concerned that her share of the house might be eaten up in care home fees?

TBagpuss · 19 August 2019 at 5:01PM

The wills nams " my husband XXX and my son XXX" as executors and trustees, so they are responsible for the turst, and for taking the steps needed in relation to omplemmenting it, so it is they who need to apply for probate.

I think the government guidance about jointly owned property is referring to the situation where one joint owner has died and the property is passing to the other - where they owned as joint tenants there is no ned for probate.

However, in this case, the property is passing from your mother to the trust, and the trust wasn't previously in existence or a joint owner of the proerty, so the exemption doesn't apply.

As I read it, the trust now owns half of the house, so ther eneeds to be a grant of probate and the Land Registry details need to be updated to show the owners and [dad] and [dad+son as trustees].

The people ntitled to the various % don't get anything until your dad no longer lives in the house, but the trust as a spearate entity owns half straight away.

Tom99 · 19 August 2019 at 6:03PM

You don't need probate only a death certificate to transfer the legal ownership where there is a surviving joint owner:
https://help.landregistry.gov.uk/app/answers/detail/a_id/125
You could:
1 - Transfer legal ownership to just your father since he is now at the moment the sole legal owner. Since the property was held as tenants in common there should already be a Schedule A restriction on the property which will remain. This indicates that your father as sole legal owner is holding the property on trust for himself and A N Other - in this case the trust set up by your mother's will.
or
2 - Presumable you can follow the process in the link above to transfer the legal ownership to your father and the trustees of the trust set up by the will - I think that is what your solicitor is recommending.

You can only have a maximum of 4 legal owners so the legal ownership could not be transferred to all 7 anyway.
You also need to check whether, because your father can continue to live there, he can inherit your mothers nil rate band and RNRB for IHT purposes. That may depend on the exact wording of the will.

Grant of probate

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