Tenant in Common AND Executor

[Marlburian]

Recently a lifelong friend passed away, leaving behind a relatively modest estate, the major part of which was a small property of which she had two-thirds ownership, with my owning the other third. There's no mortgage. Her husband and I are the two executors and get on very well, but he's doing nearly all the work as I live 160 miles away. We agree that the house should be sold and the proceeds added to the estate. I am not a beneficiary of her will (and had no wish to be).

However, I read on another legal website that "there are complex rules surrounding property held by tenants in common if the surviving spouse is the co-tenant in common and executor to the estate". and that legal advice should be sought. Just to stress, the widower is NOT a tenant in common and has no interest in the property except as an executor.

But as part-owner and executor should I be conscious of my position? It could be suggested that being the tenant in common might influence me to hold out for a higher price. Or that I might be anxious for a rapid sale in an attempt to beat any rise in Capital Gains Tax. (Actually I'm not bothered either way, but it's easy for anyone to say that.)

[des8]

As the surviving legal owner you alone have the right to sell the property.
I think you need to appoint another trustee in place of your deceased friend to give good receipt for the purchase monies. This is known as overreaching.

May I suggest a single fixed fee consultation with a solicitor to check!

[Marlburian]

Thanks for that. I chatted with the other executor this morning and, like me, he hadn't thought there might be a problem with my status. He was going to hold off approaching a solicitor about conveyancing until an offer had been made on the property, but he readily agreed with me that I should contact one now to explain the situation.

[Marlburian]

I duly wrote to the solicitors who had done the conveyancing for the property 20 years ago, saying that we would like to consider them for the job this time and oh, by the way, would there be a problem with my being an executor and surviving tenant in common.

A paralegal has just telephoned me to say that she was preparing a quote for the conveyancing - and was the property freehold or leasehold? I mildly observed that her firm held the deeds but, very unusually for me, I was able to find my file containing photocopies within 90 seconds.

I pressed her slightly on the immediate point and she said that she'd had an email from a colleague saying there should be no problem, though perhaps one could (not should) appoint another trustee to ensure fair play.

[des8]

If you do appoint another trustee, it does not have to be an expensive solicitor!
Another family member or friend perhaps?