Probate - house tenants in common

[Peridot]

Re: Probate - house tenants in common

Hi Debkit69,
Here's the link to the forum thread 'how to' upload documents: http://legalbeagles.info/forums/show...r-details-safe!)
If it is one clause in a long Will it may be easiest to type or photograph the clause dealing with the property, rather than the whole document, as no doubt there is a considerable amount by way of names and addresses etc that will need to be blacked out?
Could you also let me know the approximate value of the estate and the house value, that would be helpful too. Thanks

[Debkit69]

Re: Probate - house tenants in common

Ok thank you, il try and upload

[Peridot]

Re: Probate - house tenants in common

Thanks for posting the will. Unfortunately the clause is not drafted as I had hoped and won't allow you to 'replace' the property with another property, which you probably had already established I just wanted to check.
I had also hoped that the other assets that would make up the residue, if any., may have been divided between the siblings too and possibly been of a sufficient value for you to forgo your share of the residue but retaining the house, but it looks like it is not just the siblings who inherit the residue unfortunately. Of your mother's 50% share in the home am I correct that you receive 10% of that meaning you will own 60% of the property.
As far as the property is concerned did you put any capital into the purchase or was your contribution the obtaining of the mortgage. I don't know that you would have any argument that you are entitled to a larger share than the 50%, unless you did put a lump sum in yourself aswell as the mortgage payments. In effect your mother had the council property for which she paid rent for a significant time which then enabled the property to be purchased with a 60% discount applied to the value, at the time. If I understand correctly you obtained a mortgage for the 40% shortfall on the property value? I don't see how you could argue you were entitled to more than 50% of the property value unless you contributed to the purchase value.
You say the mortgage was in both yours and your mother's name but you paid it solely, is this correct? How long did you own the property with your mother and over what period were you paying the mortgage alone? Did you have life insurance if the mortgage was in both yours and your mother's name. In which case has the mortgage now been paid off or should it be?
Have you discussed the issues with your siblings? If it is the case you paid the mortgage yourself are they aware of this? Bearing in mind the issues with your wife's health would they be agreeable to your moving, but retaining them on the title, so they would get their share once any future property was sold?
Rather a lot of questions I'm afraid but hopefully it will help clarify things.

[Debkit69]

Re: Probate - house tenants in common

Yes it is correct that i now have 60%, i arranged the mortgage and have paid it solely since buying the house in 1999, mother helped me for a short time when i was struggling financially but it didnt amount to much, i didnt have to put a deposit or lump sum down, the house was £36,000 and i am paying £16,000 with mothers discount, i have about £2,500 to go on the mortgage, i have a seperate life insurance, mother never had one, we discussed the situations with my siblings last week but they were not happy to transfer over to a new home with us and just want their money if its sold, very greedy and selfish considering the situation we are in, we have all lived close to each other so they know that i have bought and paying for the house, thank you for all your help

[Peridot]

Re: Probate - house tenants in common

It is a difficult one. Without the benefit of your mother having been a council tenant for a considerable number of years you would not have had the benefit of the 60% reduction in the property purchase figure, so although you have effectively 'bought' your half share via the mortgage this is the part that you own in any event. The additional 10% is the inheritance from your mother.
The problem with trying to deal with the siblings would be if you tried to point out mum was meant to be paying the mortgage with you which she didn't, then they could bring up the fact you would never have been in a position to purchase a property of the size it is for the price it was. It is a bit of a catch 22 unfortunately.
Have you priced up the cost of the alterations that would be required if you stay there? Do your siblings understand what is needed and the fact that you couldn't purchase a home with only 60% of the property value? How much is the property valued at now?

[Debkit69]

Re: Probate - house tenants in common

Yes, we have tried to tell them we cant get what we want without their money but they feel they are owed this so dont really care, i dont want to have to get out another mortgage as im nearly 50 and am on a farm workers wage, the house is worth £200,000 now but was valued at 125,000 when she died, many thanks

[Peridot]

Re: Probate - house tenants in common

I hadn't realised it is 4 years since your mother passed away. Bearing in mind the difference in the property valuation from when your mother died and the possible value today, there may also be Capital Gains Tax to pay on your mother's 50% (Capital Gains will be 28% of the increase) so the pot would be even further reduced and estate agent and legal fees would also have to be taken into account. .
It would seem that for you to take over the whole of the property to do as you wish with it you have little option but to obtain a mortgage to pay your siblings their share or to purchase a new property.
If you decided you were able to do this please get legal advice to ensure that everything as far as payment of your siblings is concerned is dealt with properly. It may also be worth looking into how much the alterations to the property would cost to enable you and your wife to stay there and see if a possible negotiation could be had with your siblings regarding this if it increases the property's value even further?
It is so difficult dealing with families and wills that maybe don't do what you expected them to and even more difficult when the person making the will has not discussed with their nearest and dearest what they are doing. I'm sorry I can't really flag anything else to look into at this time. It may be worth your obtaining a free half hour advice appointment with a litigation specialist, but I wouldn't necessarily suggest that any Court action should be taken unless you have a rock solid potential claim as this would further deplete the available funds for a future property or improvements to the home.
It ma be someone else on her thinks of something you could try. Do pop back on if there are any other ideas you have that we may be able to consider as a way forward for you.

[Debkit69]

Re: Probate - house tenants in common

What would happen if i added my wife on the land registry as a joint proprieter and removed mothers name?

[Debkit69]

Re: Probate - house tenants in common

Also, do we go by the valuation that was done for inheritance tax and probate etc in 2013 or do we go by valuation now in regards to paying them out? Many thanks

[Debkit69]

Re: Probate - house tenants in common

This is on the back of a land registry letter regarding tenants in common, it doesnt actually say another proprietor has to be a sibling, many thanks

[Peridot]

Re: Probate - house tenants in common

Hi again,
You can't transfer the property into you and your wife's name. The property is or should now be owned by yourself together with the executors of your mother's will (you and a sister if I recall correctly?) So your mother's half share is to be held on trust as per her will. When the property comes to be sold then your mother's 50% share that is held by the executors (who have become the trustees) will be divided between the 5 children in equal shares and you will get have your 50% which you own in any event. Your mother's name can only be removed from the Land Registry records by the executors on production of the death certificate and Grant of Probate. There is an application that would have to be completed with the Land Registry.
The amount that is to be received by your siblings would be their individual 10% of the 'net' proceeds of the sale, so whatever is left over once legal fees, estate agent fees etc, and capital gains tax is paid. Unfortunately not the date of death valuation, but the sale proceeds now.
I hope that makes sense.

[Peridot]

Re: Probate - house tenants in common

Yes that is a standard restriction when the tenancy is severed. It enables a person to Will their share of the property to someone other than the co-owner. It is common to see particularly when couples are trying to protect part of their property from being used for care fees if the need arose.
Unless a Deed was prepared stating that you held the property in unequal shares and what those shares were the presumption is that the property is owned 50/50.
Your mother's share (her 50%) is now owned by the trustees of her will (the Executors) for the benefit of the children in equal shares (the legacy she has left to them subject to you remaining at the property until you wish to sell), together with you as the other owner with a 50% share.

[Debkit69]

Re: Probate - house tenants in common

So if we stay put and never sell they wont get anything? Then how do we leave the house in our will for our children? Many thanks

[Peridot]

Re: Probate - house tenants in common

Hi Debkit69,
If you stay in the property until you die then your mother's share will still de divided equally between the children who survive her irrespective what you do with your half share (plus the 10% left to you by your mother). You can will your share (60% in total) to whoever you wish, probably your wife in the first instance, but that is of course for you to decide. If you do not leave a Will then the intestacy rules would be applied to your assets, which if your wife doesn't survive you and you had no children, grandchildren or parents who survive you, means it would pass to those of your siblings who survive you.
At the moment if your wife survives you and you are both living at the property at that point she will have little or no protection to stay there.
I'd recommend getting some advice on what would happen in this situation so that you have the full picture of your options and how your wife's interest can be protected as far as possible.

[Debkit69]

Re: Probate - house tenants in common

Could i bother you one more time to just look over the last letter i had from solicitor after mother died, nothing else was done as my sister didnt want to use anymore of the estate money, its abit confusing as you will see, many thanks