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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9667
Experience:  I have been practising for 30 years.
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My mother, myself and my husband are Tenants in Common in

Resolved Question:

My mother, myself and my husband are Tenants in Common in ownership of our house.
My mother died earlier this year and left her portion of the house to me. Thus, I own 2/3rd and my husband 1/3. I rang Land Registry and explained this and they told me that I would not require Probate because the house was not being sold and no other name was being added to the Deeds. I merely had to send a Death send a Death Certificate to them(which I did) and eventually I would have to have a solicitor draw up a document to re-distribute the shareholding. I contacted my solicitor for an appointment to do this and they say you always need probate for property. Is this correct? Did the Land Registry give me the wrong information?? Linda
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

The solicitors are not completely correct nor other land registry.

If it was joint tenants, then the property would pass on the death of one of the joint tenants, to the survivors and you and your husband would then own the property still as joint tenants on an equal basis. If he or you then died would pass to the survivor. There is no need for probate and what you were told by the land registry in those circumstances is correct, you just send the death certificate and form AP1. What you were told by the solicitor is wrong.

However if the property is tenants in common then the share of the deceased passes in accordance with the deceased will (or intestacy if there is no will) and probate is required. So in this latter scenario, the solicitor is correct and the land registry is wrong.

The land registry don’t often get it wrong and I imagine that they were not aware that it was tenants in common.

The solicitor is wrong however by saying you always need probate because that’s not the case.

Can I clarify anything for you?

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Best wishes.

FES.

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