Probate House Sale

[Verona1313]

My mother and father separated about 7 years ago, they didn’t divorce and their house remained in both names. Unfortunately my mother died last December and she left her half of the house to me and my brother. We successfully got probate at the end of January with the aim of selling the house, to which our father agreed – we would sell the house, my father would get half the monies, whilst my brother and I would split the remaining half. The house is now on the market, however my father is now saying he doesn’t want to sell the house and he wishes to move back into the house (he currently lives in a rented property). My brother and I wish to sell, but our father doesn’t – we’re eager to get closure but short of taking costly legal advice were not sure how to proceed with this to get the house sold. Can anyone advise on the best course of action to get the house sold. Thanks.

[des8]

Re: Probate House Sale

Hi and welcome
Condolences on the passing of your mother.

When a property is jointly owned but the owners cannot agree to sell, a party can apply to he courts for an order to sell.
The application is made under The Trusts of Land And Appointments of Trustees Act 1996 but the courts have wide discretion and may not order the sale but may instead,for example,
order the occupier to pay an occupation rent to the other owner(s).
[MENTION=85500]Peridot[/MENTION] ?

[MIKE770]

Re: Probate House Sale

usually on death of joint house the partner inherits the property, only on death etc of the 2nd party does it get transferred to 3rd parties// under a trust type , sure [MENTION=85500]Peridot[/MENTION] will explain full to all, a mistake many a children have that it altomatically theirs immediatly? heard from other people similair circumstances.

[des8]

Re: Probate House Sale

As there was a will and the poster's mother left her half of the property to her sons, I assumed the property was owned as tenants in common by the parents.
This would enable the testator to leave her share to her sons, but without the agreement of all the owners or a court order a sale is impossible.

[Peridot]

Re: Probate House Sale

Hi Verona 1313,
As Des8 mentioned above, if your mother left her share of the property to you and your brother, I assume that the property was held as Tenants in Common, so the tenancy must have been severed at some point? If the severance did not occur then the property would be held as Joint Tenants which means it will automatically pass to the survivor of the couple, your father in this instance. If that is the case then your mother's half share will not pass to you under the Will. The information can be obtained from HR Land Registry for a fee of £3. You will need to obtain an Official Copy of the Register Entry to confirm this. There will be a restriction listed under the Proprietorship Register if the tenancy has been severed. We can have a look if you are able to post a copy of the information you obtain from HMLR if needs be. Just redact the individuals details before posting.

In addition with regard to your mother's will, was a right to reside clause in the will allowing your father to remain at the property until certain events happen? If there is then you will not be able to sell the property without his permission. If there is no right to reside clause then you can apply for an Order for Sale from the Court.

The other option would be for your father to buy your half share from you based on the property value , so the property would then be transferred to his sole name and you and your brother can divide the half share value between you.

I hope this makes sense do pop back on the forum if you need more clarification.

[Verona1313]

Re: Probate House Sale

Hi all, thanks for your replies. Yes, the tenancy was severed and there was no right to reside clause written into the will. The simple idea was that the property would be sold and the monies split between my father, brother and I. So if my brother and I wish to sell, and my father doesn't because he has ideas about one day moving back into the house (despite moving out 7 years ago to set up home with someone else), would our only option be to apply for an order of sale from the Court?

[Peridot]

Re: Probate House Sale

Hi again,
Unfortunately to sell the property you will need all the owners to sign the transfer, so that includes your father. I doubt you would have any difficulty obtaining the Order for Sale, bearing in mind he hasn't lived there for the last 7 years. I assume he has another property he lives in? Maybe it would be worth pointing out that if you were successful in getting the order you'd also ask that he be ordered to pay the costs of seeking the order? That would obviously reduce the amount he would get from the sale. Just a thought, or he still has the option to buy you and your brother's share as I mentioned previously? Generally people who are being stick in the muds have a change of heart if they think they will be losing money, so may be worth considering it.
Get a free half hour with a lawyer to see what the likely cost would be for them to deal with the application. It is something you can do yourselves of course but if your father is going to be difficult it may be less traumatic for you both to hand the job over?

[Verona1313]

Re: Probate House Sale

Yes, he lives in another property, currently renting, so I think he sees it as a free roof over his head as his name is still on the deeds. I'm hoping it won't come to Court Orders but the stick is definitely lodged in that mud! Out of interest, do you know how much would a court order cost? Cheers.