Divorce / Last will question

[jamesi85]

Hi, I'm asking this question on behalf of my mum.

My Mum and Dad separated in 2005 and divorced in 2007, he moved out of the family home in 2007.
They made an informal agreement that he would keep the pensions and she would keep the house.

My mum is looking at creating a will and we want to know how best to go about this, there is still an active mortgage on the property which my dad hasn't contributed towards since 2005.

-Can we transfer the house to my mum's name (100% ownership) whilst the mortgage is still in both of their names?
-if my mum passed away can she leave he share of the house to her kids? I assume she owns more than 50% as he hasn't contributed for many years?

Thanks

[jamesi85]

Correction, he moved out in 2005

[Peridot]

Hi James185,
If there is still a mortgage against the property in joint names then the mortgage lender would have to agree to the transfer. In addition unless there is a Deed of Trust in place then holding a property as Tenants in Common (assuming they have severed the tenancy) would be on the presumption this was a 50/50 split.

Do you know how the property is held? If Tenants in Common then there would usually be a restriction against the property title in the information held at HM Land Registry. If there is no restriction (other than the mortgage lender's) then it may be that they own the property as joint tenants and in the event one of them dies the other automatically takes the whole property by survivorship.

You can obtain a copy of the information held at HM Land Registry for a nominal amount here:- https://www.gov.uk/search-property-i...-land-registry

Unfortunately just because someone has taken responsibility for payments of mortgages bills etc doesn't mean they will get a larger share it would be down to them to agree and complete the necessary application to the Court for financial settlement on divorce. Of course if one party has been paying more since the decree absolute then that will be taken into consideration but without an Order approved by the Court nothing is certain I'm afraid.

If they have agreed the division between them then they can have a draft consent order prepared that sets out the agreement. I would recommend tis is prepared by a solicitor as there are a number of claims that each party can make and you want to make sure everything has been locked down so to speak. This is then sent to the Court with the application and forms confirming each parties assets, for the Court to approve (or otherwise) the draft order agreed.

If each party has some legal advice on the agreement, the Court is more likely to approve the agreement reached.

Once the order is approved by the Court then all future claims against each other's estate will be written off. Until that happens potentially they each continue to have claims against each other's assets.