Probate needed or not - answers vary

[Atlantic D]

Hello,

My parents had mirror wills and a Family Trust drawn up in 2009.
Their house was transfered into joint names (having previously been only in my Father's name) and registered at the land registry with this wording under title absolute
RESTRICTION: No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.

There have been no amendments since.
Both parents have since passed away. Father 6 years ago and then mother 2 months ago.

Their mirror wills appoint myself and my sister as executors being the eldest two of four siblings.

The Family trust has four trustees my father, my mother, myself and my sister. Only myself and my sister are surviving (of the trustees) and we along with two other siblings make up the four beneficiaries.

I have contacted several probate solicitors to find out if we need to apply for probate or not. Some say yes, two say yes twice, one grant for mother's share of the house and one for father's share, and one said no probate is needed as the property is now in Trust already with we two as named trustees and so we can do what we want with it.

I should add that nothing else calls for probate (there was a current account under the threshold for probate and that's it).

I don't know who to believe or what to do next.

Perhaps asking a probate solicitor if you need probate is a bit like asking a barber if you need a haircut.

Can anyone help?

[Atlantic D]

Anyone?

If I can't get a conducive answer from a solicitor which body should I turn to? Who decides?

[des8]

So your parents held the property as tenants in common.
How did their wills deal with their respective shares of the home?

[Atlantic D]

Thank you Des8

This is my father's will. mum's was a mirror of it (names and addresses redacted). The trust document is separate.
Pages 1 & 2 uploaded, (page 3 is just signatures).

I had this message from one solicitor :-

"I have taken a look at both documents and I would advise that the property will sit outside of your late mothers estate and therefore would not need Probate to move forward with the sale of the property.
The only way in which you and your sister will need to obtain Probate is if there are any other solely held assets that your late mother had valued over that company's probate threshold and from our telephone conversation I believe that the cash assets your mother held was minimal and this is unlikely.
As trustees you now have the power to move forward with the sale of the property and you will then be in charge to manage the distribution of the trust and wind this down. We can of course recommend a firm that specialises in Trusts if you do not feel comfortable to close a Trust on your own.
With regards to the title of the property our Probate property specialist has reviewed this for you and the ownership is shown as a tenants in common ownership between your parents and there is mention of a Trust.
We work with probate property specialists who can assist with the sale and conveyancing of the property. This is calculated at 1.5% plus VAT. Typically a high street estate agent will quote a percentage and then add conveyancing on top which will work out more expensive. Local agents & conveyancers are taking an average of 203 days to sell a property right now. With good sales preparation & searches pre-ordered we believe a 60-90 day sale is feasible, if not sooner. That’s 143 days quicker than our competitor average.
If you would like ***** to put together a property report for you, please let me know and I can send this across. We do not charge for a report of the property and I am happy to give you a call to discuss this further.



And the opposite from another :-

If the property is still registered in the name of your parents it has not yet been transferred to the Trustees and so is not held in the Trust. The transfer of the property must be by way of an assent or transfer. It can only be done by your parents executors as they made a Will. HM Land Registry will not accept an assent or transfer without a grant of probate. As both of your parents made mirror Wills leaving their respective shares in the Property to their respective Trusts two grants and two assents/transfers are required one for each share.
Assuming there are no difficulties, this firms proposed charge for obtaining both grants and completing both assents/transfers would be £1,600.00 +VAT. When applying for each grant a fee of £155.00 per grant is payable to the probate Registry. Fees must also be paid to HMLR to register each assent/transfer. The fee will depend upon the market value of each half share but typically will be £40.00 per application. There will also be HMLR fees for searches and copy entries which will be approximately £10.00.
I hope this helps


So I don't know who is correct. No grant of probate needed at all, or two needed - plus two assents/transfers.

both have seen the exact same paperwork. The Co-op also say no probate needed and a fourth solicitor thinks only one grant of probate needed (but hasn't seen all the paperwork yet)

So confused.

[des8]

According to the first solicitor " the ownership [on the proprietorship register] is shown as a tenants in common ownership between your parents and there is mention of a Trust."

The second solicitor does not appear to have researched land registry "If the property is still registered in the name of your parents it has not yet been transferred to the Trustees and so is not held in the Trust."

In my ignorance I would go along with the first solicitors reading of the situation, depending on that "mention".
This is on the assumption that their respective wills allow for the property to pass entirely to the trustees who are mentioned on Land Registry files.

[Atlantic D]

Attached redacted title. I can't see the words 'tenants in common' but I can see the 2009 update where my mother's name is added (so tenants in common by defintion, or by default?) and a trust is mentioned, though no detail. (see blue).

[des8]

The register does not use the term "tenants in common".
The position is indicated in the second paragraph which is a restriction alerting a Conveyancer to the fact that the owners are tenants in common and one of them alone cannot sell the property.

The reference in that restriction to a trust corporation is not a reference to the family trust.

Following the clarification you have given I would go along with solicitor number 2 when he says:
If the property is still registered in the name of your parents it has not yet been transferred to the Trustees and so is not held in the Trust. The transfer of the property must be by way of an assent or transfer. It can only be done by your parents executors as they made a Will. HM Land Registry will not accept an assent or transfer without a grant of probate. As both of your parents made mirror Wills leaving their respective shares in the Property to their respective Trusts two grants and two assents/transfers are required one for each share.

[Atlantic D]

Thank you so much. It finally makes sense, thanks to you.