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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10459
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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My Father has just died and he has left his half of my parent's

Resolved Question:

My Father has just died and he has left his half of my parent's house to 9 of his 10 grandchildren. My Mother has been told she needs to sort out the Deed of Ascent for the grandchildren over 18. My concerns are:
1. How will the share of the property for the grandchildren under 18 be preserved if no deed of ascent is being filled out for them. (I thought their share would have been preserved in a trust to protect this)
2. Can my Mother sell the property now without their permission or will she need the permission of the 6 grandchildren over 18 and the trust responsible for the children under 18. In addition, can any of the grandchildren use this share of the property to secure a loan.
3. How will owning this property effect the over 18's who are at University or on benefit? Will thye loose benefit?
Submitted: 1 year ago.
Category: Law
Expert:  Aston Lawyer replied 1 year ago.
Hi,Thanks for your enquiry.It all depends what it says in the Will as to whether your Mother could sell the property.Normally, the Will will stipulate that your Father grants your Mother the right to remain residing in the property for as long as she wishes, and also that if required, she can use the whole of the value of the property to buy a replacement property if her needs require it (with the grandchildrens 50% of the value of the current property in effect being transferred over to the new property).If, therefore, the above clauses are in the Will, your Mother will be entitled to sell and buy another property.If neither of the above clauses are in the Will (which would be unusual), then the grandchildren could demand that the property be sold to enable them to realise and receive their due proportion. If your Mother wished to sell the property, she has become the sole legal owner, but would need to pay over 50% of the net proceeds to the grandchildren (in effect, this would be paid to the Executors and Trustees named in the Will, as they would then distribute the monies to the adult grandchildren and invest the monies for the minor grandchildren). She wouldn't therefore need to obtain all the grandchildrens consent to the Sale- as long as 505 was passed to the Trustees.Either way, none of the grandchildren be able to raise any security against their share of the property- in order to get a loan/mortgage registered against a property the applicant needs to own 100% of the property.If the property is not sold, the correct thing to do would be for the Deeds of the property to be transferred into the joint names of your Mother and the Trustees of the Will, as opposed to the beneficiaries, showing they own 50% respectively.As regards ***** ***** entitlements, it all depends on what the Will says, as to when they are entitled to their due share. If the Will states that your Mother is entitled to remain living there/can buy a substitutional property, then they will only be entitled to their share once the property or substitutional property is sold. So, if any of them are on benefits, they would only have to declare this as capital, once they have physically received their share. You do therefore need to study what the Will says. I hope this assists and sets out the legal position.Kind RegardsAl
Customer: replied 1 year ago.
Unfortunately, Mother is cagey about showing any of the family the will. She has been asked to get Deed of Ascent signed which I assume will be in respect of over 18's and her concern is they will be on deeds. I assume from your answer the best move is to hold the property in joint names My Mother and a trust representing all of the grandchildren including those under 18. Mother/Father owned the property 50% each and he has left no lifetime interest. Hence, her concerns regarding the property being sold from under her or being forced to sell to pay them their share. The will has no restrictions on age or time when they are to inherit so straight away. Problem is 3 of the 9 are under 18.
Expert:  Aston Lawyer replied 1 year ago.
Hi,It's surprising that the Will didn't contain a provision allowing your Mother to remain living there as long as she wished.However, I would hope none of the grandchildren demand their share now, and on that basis, you are correct- the property should be transferred into the joint names of your Mother and the Trustees.If there is no provision in the Will as to when the grandchildren inherit, they will all be legally entitled to their respective share on attaining 18 (you have to be 18 to inherit, so the minor grandchildren aren't entitled to their share straight away- and at least their entitlement will hopefully increase in value, with the increase in value of the property).Hope this helps. Kind RegardsAl
Customer: replied 1 year ago.
Many thanks just a couple of quick points. Does signing the Deed of Ascent just mean they now inherit the property while those under 18 are held in trust. Secondly, If one of them does insist on their share would the property have to be sold if my Mother did not have the cash?
Expert:  Aston Lawyer replied 1 year ago.
Hi,By signing and registering the Assent at the Land Registry, it just means that the property ownership will pass to your Mother (50%) with the Trustees owning the other 50%. All the grandchildrens due shares are therefore "held" by the Trustees until such time as the property is sold.If any of the adult grandchildren demanded their share, they would have to issue Court proceedings and force a Sale- the Courts would not normally make such an Order unless there were reasons as to why your Mother should sell up (the Court will look at her circumstances and unless she was rich and could afford to sell, pay out 50% of the proceeds and then have enough to buy a suitable replacement property, they are unlikely to find in favour of the grandchild).Hope this assists.Best WishesAl
Customer: replied 1 year ago.
Sorry for the delay, I have managed to get hold of a copy of the will and there does seem to be a provision for my Mother. However, I would like you to look at the clause as I just don't see where there should be a trust set up for the grandchildren. It appears to me that it should be kept in trust for my Mother until she passes away and then his intentions were the grandchildren get the property.
Expert:  Aston Lawyer replied 1 year ago.
Hi,If you could attach a copy of the Will, I can have a look at it for you.Kind RegardsAl
Customer: replied 1 year ago.
Hi there, Please find attached the copy of the will. My understanding is:
Mary ***** ***** is the Trustee of the will or does the fact that the term trustees mean the sisters are? Point 2 Known as The Trustee and Point 7 Known as the Trustees because point 4a states I give to the Trustees one half of the property.Can MC King use the property and sell it without asking anyone? if she does will proceeds have to be put in trust
Do the grandchildren need to be notified as they do not appear to inherit anything until MC King dies?
If this is so why would the solicitor insist on the grandchildren signing a Deed of Ascent
If they do inherit half the property now assume that this will be held in trust as previously dsicussed
Expert:  Aston Lawyer replied 1 year ago.
Hi,Thanks for forwarding the copy of the Will.As your Mother survived your Father, she is indeed the Trustee. Only upon her death, do the daughters become Trustees.Mary is therefore free to sell the property as and when she wishes, without obtaining anyone else's consent. The only proviso is that if she decides to downsize, and after the sale and purchase is completed, 50% of whatever money is left over should be retained by her, and the interest she earns on that money is her, but the capital element then passes equally between the grandchildren on her death (or if they are under 18, their respective share will be invested by the Trustees-Daughters, until they reach 18), together with the 50% share in the new property.Therefore, you are correct in that the grandchildren do not receive anything until your Mother dies. However, if your Mother does not intend selling now, amending the Deeds it is the correct thing to do so it is clear that the 50% share in the property which belonged to your Father does now form part of his Estate. ( This is to protect the 50% and furthermore, if your Mother were to go into a Nursing home at some point in the future, social services would want to see evidence that she does only legally own 50% of the property, when assessing the amount of capital she has). Really, therefore, all the Solicitor needs to do is a simple Assent or Transfer, transferring the property so that it shows your Mother owning 50%, with the other 50% being held by her as Trustee for your late Father. I personally can't therefore see why the grandchildren need or should have to sign the Assent! You are best to get clarification from the Solicitor.I hope this helps.If I have answered your question, I would be grateful if you could rate my answer.Kind RegardsAl
Customer: replied 1 year ago.
Hopefully one last clarification, if she does down size then that money is put in trust for the grandchildren upon her death and all interest associated with it is that of the grandchildren or hers. Secondly, as she is the trustee of Deceased estate is it upto her to find a suitable investment for the half that belonged to the decesaed
Expert:  Aston Lawyer replied 1 year ago.
Hi,If your Mother were to downsize, and say that left £20,000 remaining. £10,000 of it (being the grandchildrens 50%) would be invested in a safe investment. Any interest earned on this investment belongs to your Mother during her lifetime. Upon her death, the investment would be cashed in and belong to the grandchildren. If any of the grandchildren were under 18 when your Mother died, their percentage from this investment would need to be invested elsewhere until they reached 18.It is indeed your Mother's job to arrange the investment for any monies left over following any Sale, as Trustee.Kind RegardsAl
Customer: replied 1 year ago.
Promise last question, if investing the capital for the grandchildren I would assume this would be in there names or a trust set up for them.
Expert:  Aston Lawyer replied 1 year ago.
Hi,No- the account/investment would be in your Mother's name as "Trustee of D King".Kind RegardsAl
Expert:  Aston Lawyer replied 1 year ago.
Hi,If I have assisted you, I would be grateful if you could rate my answer, so I may get credited for my time.Best WishesAl
Expert:  Aston Lawyer replied 1 year ago.
Hi,please don't forget to rate my answer.Many thanksAl
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