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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10527
Experience:  Barrister 17 years experience
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My fatherinlaw had a trust made up in 2003 whereby myself and

Customer Question

My fatherinlaw had a trust made up in 2003 whereby myself and my sister are the beneficiaries of his house. He did not set up a will as he believed the trust was sufficient as that was his only asset. We have another 3 siblings but they were not named as beneficiaries within the trust. I have been told that I should not have to go through probate. Can you advise me of the process for transferring the ownership of this house. A restriction on the property has been registered with Land registry with the 2 beneficiaries names. Please can you advise
Submitted: 1 year ago.
Category: Law
Customer: replied 1 year ago.
I have a copy of the trust but not the original as I believe the original would have been lodged with Land registry.
Customer: replied 1 year ago.
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Customer: replied 1 year ago.
M father inlaw had 5 children (4 sons and 1 daughter) . Myself and my sister are married to the two elder brothers. My father inlaw passed way last year and we still have not managed to sort out his estate. He held a single property and he drew up a trust whereby the elder two brothers(being our husbands) were the named beneficiaries to his home. A restriction has been applied on the title deeds of the property, but my local solicitor has advised me that we need to go through probate.Since we do not have a will and only a copy of the trust, will this pose a problem for us to transferring ownership ? How should we go about transferring the title deeds ownership. Please advise.
Expert:  Buachaill replied 1 year ago.
1. Dear Nav, the first thing is that your father in law's will is separate from the trust. The trust and its assets including the house have not been owned by your father in law since the date he transferred the house to the trust. On this date - in the past - his ownership ceased and the trust now owns the house. This trust can now be run for the benefit of your two husbands. However, if your two husbands wish to have the house in their personal names, they will have to dissolve the trust and bring it to an end. This is because a trust is a separate legal entity in law, separate from the beneficiaries of the trust. It is the trust which owns the assets and not the beneficiaries. The beneficiaries have to dissolve the trust if they wish to own the assets. However, this will have tax consequences. FAr better to leave the house in trust and use it as and when each beneficiary wants to use it. Or reach some agreement about usage and some payment to the husband who is not living in it.
Expert:  Buachaill replied 1 year ago.
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Customer: replied 1 year ago.
Thankyou for your reply.We the beneficiaries want to sell the house and split the sale proceeds 50/50. The house is worth £92k and this will not incur inheritance tax.
1 will the land registry have kept the original trust lodge? I only hold a copy.2 how to I transfer the ownership into the beneficiaries names. A property held in a deceased persons name cannot be sold until ownership has been transferred?
3 do I have to go through probate or letter of administration. Please advise on the process for trabsferring ownership.
Customer: replied 1 year ago.
The property is held as a trust deed.
Expert:  Buachaill replied 1 year ago.
3. The Land Registry will have a copy of the conveyance to the trust. It will not have a copy of the trust deed. Nor will it have the original Trust deed. This original Trust deed will be with the solicitors or accountants or trust provider who set up the Trust for your father in law. Secondly, the property will not be held in your deceased father in law's name. It will be held in the name of the Trust. It is for this reason that it does not form part of the estate of your father in law. Thirdly, you will not have to go through probate or the letters of administration process to get the house in your names. Instead you will have to terminate the trust deed.
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Customer: replied 1 year ago.
Dear MrCustomer
Please find attached copies of the Trust deed and land registry title. A declaration of Trust dated 4th March 2003 has been added as a restriction to the title register. Please can you review these and advise on the next steps we need to take to transfer ownership. Please note the beneficiaries are in agreement and we just need to sell the property and divide the funds.My understanding is I do not have to go through probate or get a letter of administration. I am assuming my solicitor will have to dissolve the trust and transfer the ownership to beneficiaries. Please can you confirm my understanding is correct as I keep getting different advice. Many thanks.
Customer: replied 1 year ago.
Dear MrCustomer
Please can you answer the question raised above as I have attached the trust deed copy and registry title. Your co-operation will very much be appreciated. Many thanks.RegardsNav
Expert:  Buachaill replied 1 year ago.
4. Dear Nav, the reason you are getting different advice is that the terms of the Trust are not reflected on the Title Register as the property is still registered in the name of Santokh Singh, the settlor of the trust. So, whoever is giving you advice is unaware of the terms of the trust so they think probate is necessary. The correct course of action, when the trust was set up, was to have then registered the property in the names of two trustees, Santokh Singh and some other person, or to at least place a restriction on the title detailing that the property was now held in trust. However, the effect of the trust is that the title is held by Santokh Singh subject to the trust. The correct course of action now is to transfer the ownership to the trustees. Put right what was not done when the trust was set up. Here, as Santokh Singh is dead, two trustees will now have to be nominated in order for the trust to be valid and the property registered in their names. This takes the property outside the will.
Expert:  Buachaill replied 1 year ago.
5. A trust needs two trustees in order to be valid. So whoever set up this arrangement did not comply with the necessary formalities for having two trustees. So it was badly arranged by the solicitor who executed the Deed of trust. This is the reason for the confusion.
Customer: replied 1 year ago.
I don't understand. So what should I do now to rectify this.
Expert:  Buachaill replied 1 year ago.
6. Get a solicitor who knows something about trust law. This initial Declaration of Trust was a botched job. Additionally, whoever is giving you advice that it should be part of the will and be subject to probate has no understanding of trust law. So get a solicitor who knows what a trust is and what are the formalities in order to create a proper trust. This will solve all the confusion which exists around what is a straightforward issue.
Customer: replied 1 year ago.
If the initial job was a botched job can it be rectified now ? Can I instruct yourself to rectify this.
Customer: replied 1 year ago.
Here, as Santokh Singh is dead, two trustees will now have to be nominated in order for the trust to be valid and the property registered in their names. This takes the property outside the will. <-- Who will have to nominate the trustees as Mr Santokh Singh is now dead? Will the beneficiaries nominate themselves as the trustees.
Customer: replied 1 year ago.
Can the beneficiaries nominate themselves as being the trustees ?
Expert:  Buachaill replied 1 year ago.
7. You can get a good solicitor to solve all your problems and they will rectify the situation and ensure the house does not go into probate. However, JustAnswer is a Question & Answer forum. It is not a website where you instruct someone to represent you. Secondly, both beneficiaries can act together to appoint two people who are willing to act as trustees. However, these two people do not have to be the beneficiaries. The two beneficiaries may nominate themselves as trustees if they wish. However, that does not have to be the case.
Customer: replied 1 year ago.
Thank you so much. Your advise has been invaluable.
Expert:  Buachaill replied 1 year ago.
8. You are welcome. Glad I could be of assistance.