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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33827
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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Hi I have a mortgage in sole name but own the property jointly

Resolved Question:

Hi

I have a mortgage in sole name but own the property jointly with my father. We want to raise money and our current lender HSBC allowed this by my father taking Independant Legal advice.

The property was previously owned in three names including my late mother. When she died she asked that my father have the property for his lifetime before it passes to me. The executor is a distant childhood friend of my mother who is likley although not guaranteed to be happy to allow anything we think is best. However she is listed as having to provide written consent to any further borrowing and there appears to be some kind of deceleration of trust in place as well.

We cannot raise any additional money or remortgage away from HSBC while my father is joint owner because of his age (67) and he is happy to gift the property to me which is unlikley to raise an IHT liability.

The consensus among all party's is that my mothers will was set up to protect mine and my fathers interests as in not to sell the property from under each other and not provide an obstacle to refinancing with other lenders as is currently does. The current situation leaves us effectively trapped with one lender and may result in the property having to be sold if they do not extend the term of an interest only section of the current borrowing.

My question is: is it possible to remove my father from the deeds with the executors consent and turn the property over to my sole ownership even though this may go against the Will. If not what are the legal options open to us to allow this to happen if any.
Submitted: 3 years ago.
Category: Family Law
Expert:  Clare replied 3 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What does the Will actually say about the property?
Clare
Customer: replied 3 years ago.
Morning Claire, trying to do this on my phone so bear with me. The Will says as follows:

My interest in the freehold property known as xxxxxx. Shall not be sold during the lifetime of my husband xxxx without his consent in writing and that until such a sale my trustees shall allow him to occupy the said property rent free for so long as he shall desire but upon condition that he pays all the bills etc. and shall keep the same insured in the names of my trustees against such risks and in such anmount as my trustees shall from time to time require.

On his death my trustees shall hold said property for my son xxxxx that of he shall die in my lifetime leaving a child they get the property.

There is also various restrictions at the land registry relating to the trustees and specifically the executor having to sign a consent form. Effectively acknowledging that she is aware what it going on.
Expert:  Clare replied 3 years ago.
Hi
Just to check - your father still has mental capacity - and may I ask when your mother passed away?
Clare
(and your phone use is better than my elderly typing!)
Customer: replied 3 years ago.
Phone vs elderly typing! My father is of mental capacity and our relationship is fine. 16th January 2008 is when my mum died.
Expert:  Clare replied 3 years ago.
Hi
Thank you for that
Had your mother dies within the last two years we would have had an alternative option hence the question
However as things stand there is in fact a relatively straightforward way forward way forward which will provide protection to both the Executor and your father
Your father should write a formal letter to the Executor confirming that he no longer wishes to occupy he property under the terms of the Will and asking her to deal with the formal transfer of your mother's share of the property to you.
At the same time he can deal with the Transfer of his share to you and in Return you can sign a Declaration of Trust confirming that he has the right to remain in the property so long as he wishes to do so.
I hope that this is of assistance please ask if you need further details
Clare
Customer: replied 3 years ago.


Thanks you for this. Do you have an estimate of the rough costs involved to undertake this move. Obviously I'm aware this differs wildly but just a ballpark figure would be really helpfull when approacimg solicitprs to undertake this for me.


 


Thansk for you response!

Expert:  Clare replied 3 years ago.
Hi
None of it is complex - but there are a number of stages involved - so somewhere in the region of £750 plus VAT etc
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33827
Experience: I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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