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F E Smith
F E Smith, Advocate
Category: Property Law
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Experience:  I have been practising for 30 years.
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UK - Probate My wife and I bought a house (joint tennancy)

Customer Question

UK - ProbateMy wife and I bought a house (joint tennancy)We divorced and a court order specified:-
1. the home to be sold at a price to be agreed by my wife and I
2. 70% of the sale proceeds after costs to be paid to my wife.The house was placed on the market at £450k. I had to pay the mortgage as my wife did not work.Unfortunately my wife passed away. She had no will but had left our daughter as the named beneficiary of her pension.I entered a caveat to stop probate as it appeared her son (Lee - not to me) was trying to get at this pension.Since then (12mths) the property has been on the market for £435k - 26viewings and no offers. It is overpriced but Lee has already stated he would only accept £455k.He appears to be prepared to wait a long time as he is not paying the mortgage.I believed that he had the same authority as my wife in the sale process, but I have been told this may not be correct as the house was purchased as joint tenancy and I am the sole survivor.This has been brought to a head as a cash offer of £400k is in and I want to accept. Lee's solicitor is telling me he will not accept less than £450.Am I the owner and can I sell the property - I will still give him the 70% if that is required.thx
Submitted: 6 months ago.
Category: Property Law
Expert:  Nicola-mod replied 6 months ago.
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Expert:  F E Smith replied 6 months ago.

I have been asked to look at this for you.

I need some more information from you please. Was there any mention in the court order of the marketing price?

Who is living in the property?

How much is the outstanding mortgage?

I am going off-line now but will be back tomorrow.

Customer: replied 6 months ago.
Hi - There was no price set on the court order, it was to be agreed by the parties, the property is empty, £380K - thx
Customer: replied 6 months ago.
Sorry, the marketing price was to be agreed by me and my wife, but no figure was put on it.
Expert:  F E Smith replied 6 months ago.

Thank you.

So basically the problem is not the sale of the house, which is agreed and indeed, in the court order, but purely the price.

I assume that for now, you are living in the house and the son is not. Please tell me if it is any different.

You need to write to the solicitor and tell him that the timescale here. In the property is completely unreasonable and that if their client doesn’t come up with a proposal to sell the property at a reasonable price in accordance with the recommendations of the agent, then you will make an application to court to have the price fixed by the court and you will ask the court to award costs against the son personally.

The deeds are joint tenants and therefore the house passes to you under the right of survivorship but it only does so subject to the court order so you could sell the property without his consent but there is still an argument over the amount of the proceeds.

I’m afraid that if he will not play ball (he is just being awkward because he is prepared to wait for the extra amount of money which would be his 50 percent of the difference between your proposed sale price and his proposed sale price) you cannot beat him with a stick until he rolls over and plays nicely, and your only remedy is a further court application.

You just need confirmation from the agent that the price is realistic.

If the property has been on the market for 6 months or more, then clearly it is too expensive.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

If you still need any points clarifying, I will still reply because the thread does not close.

Best wishes.


Customer: replied 6 months ago.
Hi & thanks.
The property is currently empty. The key question is am hoping to have answered is this:-
The court order specified that the selling price would be set by mutual agreement between my wife and I.
She is now dead. Am I legally allowed to sell the house at a realistc market value of my choosing (due to the joint tenancy) or does her son inherit an interest in the house meaning I now have to agree the price with him?
Expert:  F E Smith replied 6 months ago.

If he inherits the house, then it set by mutual agreement by him and you as he has inherited his mother share.

On a strict interpretation it’s between you and your ex-wife and she no longer exists so she can’t agree so you can do what you like but it’s not one that I would like to argue in court with the hope of the argument succeeding if the son takes exception to it.

I’d really cannot see any other avenue than dragging him off to court.

Customer: replied 6 months ago.
even with no will and a joint tennancy you think he may inherit her share of the house?
Expert:  F E Smith replied 6 months ago.

He does inherit her share of the house but he inherits it from her under the terms of the order. Just because she died, doesn’t mean the order falls away.

I am glad to help. Please don’t forget to use the rating service because it means that I can continue to provide affordable and timely legal advice to people with similar problems.

Although it says "rate to finish" it doesn't close the thread and we can still exchange emails.

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Thank you.

Best wishes