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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10176
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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, my mother died as a tenant in common, apparently without

Customer Question

Hi, my mother died as a tenant in common, apparently without making a will (though it is more likely to have been stolen), my stepfather then died some 19 years later and had not applied for letters of administration or renounced his right to do so. The property deeds still had my mothers name on them when he died, his new wife (who he married while he was terminally I'll) has managed to sell the property by totally bypassing probate on my mothers estate - which I am in the process of obtaining - can this be legally done or is it fraud?.
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.

Hello and thanks for using Just Answer.

My name is ***** ***** am happy to assist you with your enquiry.

Where a property is held as Tenants in common, the legal ownership passes to the survivor (B) on the first owner's death (A), and the Land Registry will remove A from the title on production of their death certificate.

However, B then owns the property outright, subject to A's "equitable share". If B has inherited A's equitable share, A is then entitled to sell the property and retain the proceeds of Sale. Likewise, if B has subsequently died, his next of kin/Executor is entitled to sell the property and retain the proceeds of Sale.

Therefore, if your Mother did not leave a Will (or you can't prove she made a Will, leaving her equitable share in the house to someone other than her husband), then under the rules of Intestacy, her husband would no doubt have inherited her equitable half share in the property.

Accordingly, if this is what happened, his new wife would be entitled to sell the property if she was his Executor under his Will or as next of kin if he dies without a Will.

I am sorry this is not the answer you were looking for, but sets out the legal position.

Kind Regards

Al

Customer: replied 1 year ago.
Hi Aston, not doubting you, but I've read on other sites, such as citizens advice bureau etc., that this is only the case in joint tenancy and as my mother was a tenant in common, letters of administration must be taken out by somebody, something is not right in this affair as it took them 7 years and 4 months to obtain probate on a very simple will.
Kind regards,
Andy
Expert:  Aston Lawyer replied 1 year ago.

Hi Andy,

Thanks for your reply. I'm afraid it is the same whether it be joint tenants or tenants in common, in that the legal ownership passes to the survivor. The only difference is that with a joint tenancy, the property passes automaticaly to the survivor, whereas with a tenancy in common, the half share of the deceased passes in accordance with that peson's Will or next of kin if there was no Will.

As stated earlier, the property can still be sold by the surviving owner, but subject to the survivor making sure that the "equitable half share" passes to the correct person- so, for example, if your Mother had left a Will leaving her half share to you, her husband could have sold the house on his own, provided he accounted to you for your half share.

Hope you appreciate, I can't really comment on why it took over 7 years to obtain probate, but I can confirm the above is indeed correct!

Kind Regards

Al

Customer: replied 1 year ago.
Hi Aston,
Thanks for that advice.
So I assume that nobody needed to get letters of administration on my mothers estate and that I would be wasting my time and money applying for them, when I explained the situation to the probate office, as i have done to you, although they said they are not qualified to give legal advice, their advice was to inform the police as without my mothers estate being administered, the property could not be released?
Kind regards,
Andy.
Expert:  Aston Lawyer replied 1 year ago.

Hi Andy,

I certainly wouldn't waste your time applying for Letters of Admin as there is nothing to administer. No Letters of Admin/Probate would have been required if all her Bank accounts were in joint names with her husband or she held under £5-£10,000 in her sole name.

Not sure what was discussed with the Land Registry -certainly they would have advised you to speak to the Police if there had been a fraud in respect of her Mother's Estate, but for the reasons stated above, I don't believe this to be the case.

I hope this helps and answers your Question.

Kind Regards

Al

Customer: replied 1 year ago.
Hi Aston,
Thank you for your reply.
However, despite you giving me a wealth of information, I'm struggling to get a direct answer to the specific question that I need answering.
Do you concur with the CAB, Which? guide to probate and wills, HM gov website, barrister Fenton Bressler and the probate office, that, as a tenant in common - owning 50% of a fairly valuable house (current value circa 900k) that somebody MUST take out letters of administration?
Obviously I can't rate your reply until the question has been answered.
Kind regards,
Andy.
Expert:  Aston Lawyer replied 1 year ago.

Hi Andy,

I confirm 100% that a surviving Tenant in common can sell a property without Letters of A being required for the deceased owner.

Yes, it is normal for Letters of A to be obtained, especially if this is required to deal with any other assets in the Estate (ie Bank acoc**ts etc), and if it is obtained, the Administrator joins in on the Sale Contract and the property is sold by the surviving owner and the Administrator.

However, if the surviving spouse is also the beneficiary of the deceased's half share in the property, and he does not require to obtain Letters of A to deal with the deceased's other assets, it is perfectly acceptable and normal for him to proceed with the Sale on his own, provided a third party is appointed as a Trustee (normally his Solicitor) in the Transfer document.

To be technical for a minute- whenever a Buyer is buying off a sole surviving tenant in common, his Solicitor needs to make sure that the surviving owner does indeed have the right to sell the property and that the deceased's half share will pass to the party who is entitled to it. To achieve this and so that the Seller can give a valid receipt for the purchase monies, the Seller needs to appoint a second party in the Transfer and if this is done, then the Buyer's Solicitor are guaranteed that the property has good title and there will be no comeback on the Buyer from any third party "claiming the deceased's half share".

I would suggest that you speak to any local Conveyancing Solicitor concerning the above, if you do have any doubts.

I hope this assists.

Kind Regards

Al

Customer: replied 1 year ago.
Hi Aston,
Unfortunately, we're still not quite there.
It was NOT,the surviving spouse that sold the property, it was his new wife. NOBODY, has ever taken letters of admin on my mothers estate, and, I believe, that there is a strict "pecking order" to do so, namely my stepfather first (who is deceased) and did not take out letters and then myself, as the only child, nobody who is not a blood relative is not entitled to apply.
In the meantime, I have contacted the top London family lawyers, Vardags, on an initial consultation basis, they have advised me to obtain probate on my mothers estate - why would they do this if there was nothing in my mothers estate?
Kind regards,
Andy.
Expert:  Aston Lawyer replied 1 year ago.

Hi Andy,

Please see my first reply, concerning the Sale by the new wife.

I have helped as much as I can.

On a side point, I am not sure why you have been advised to obtain Probate, as there was no Will.

Kind Regards

Al

Customer: replied 1 year ago.
Hi
Sorry - I mean't letters of administration as opposed to probate - my mistake.
Thanks for your help - I'll obviously run with Vardags.
Kind regards,
Andy.
Expert:  Aston Lawyer replied 1 year ago.

Good luck Andy.

Kind Regards

Al

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