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Confusing clause in will

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  • Confusing clause in will

    Hi all,

    Have a bit of confusion re: a parent's will.

    Mother-in-law owned her house, and lived with a partner.

    She left her house to her 2 adult children plus her partner to "hold upon trust", to be later sold with proceeds given to beneficiaries (Son, Daughter and assorted grandkids - not the partner). But this only happens once he no longer needs to live there. There are additional stipulations for the trustees regarding the property.

    How does this "holding upon trust" work from a legal standpoint? There house was never placed within "A Trust", so we're unsure who legally owns the property, whether they need to notify land registry / HMRC, and how they would sell it when the stipulations of the will allow it.
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  • #2
    I've had a similar experience with my mother's will which had a clause along similar lines. It was explained to me by the solicitor I consulted that the Trust was created by the Will and automatically came into existence on my mother's death and I didn't need to do anything to create a specific trust or register it with anyone.

    The Will also said that me and my brother were appointed "Executors and Trustees" of my mother's estate. As Trustees we were the legal owners and we registered ourselves as the legal owners at the Land Regisstry on that basis. We used a solicitor to do that for us.

    The Will had various provisions about my mother's partner living there. In my case it was for the rest of his life but terminated earlier in various circumstances - if he remarried, if he moved out for more than 30 days, etc. He had to pay all the bills, - council tax, utilities etc - but wasn't required to pay rent. Therefore there was no income to the Estate so nothing to declare to HMRC and we did not notify them of anything.

    As it happened he died a few months later. We, as Executorrs, sold the flat immediately afterwards. There were no particular issues in selling it, it was exactly the same procedure as anyone selling a property. We put it on the market through an estate agent and appointed a conveyancing solicitor and let them get on with it. The solicitor needed to see all the original documents, Probate and the Will, and the death certificate and ID proof, but that was it. It's the Probate document that gives you as Executors the legal power to sell it.

    Hope that's of some help. Not legal advice just sharing my experience..
    Last edited by PallasAthena; 16th September 2023, 08:34:AM.
    All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.


    • #3
      The title deeds should be changed to "Trustees: (name of trustees,)"
      The article "lawplainandsimple.com/property-in-trust-explained/" provides info about properties in trust.


      • #4
        It should not cost much to change the name on the deeds. Conveyancing solicitors can access and amend the Land Registry from their computer.


        • #5
          If a trustee is not named in a will the executor will not automatically become the trustee. A trustee will need to be appointed.


          • #6
            Thanks all, that is very helpful.


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