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Advice needed re. property split following a death.


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Could do with some help on this one guys and gals....

 

A couple live together for around 25 years, buy a property in joint names but are not married. The woman developes dementia and has to go into a care home. She has already made a Will and a solicitor is Power of Attorney over her affairs. There is no debt owing (if applicable) in relation to her care home needs, so this is not an issue.

 

However, the man passes away. He has also made a Will, but has not left anything to the woman because she is in the home and presumably, could not make direct use of any funds. Instead, he has named other beneficiaries.

 

Question...

 

Does the home pass to the woman anyway because it was bought jointly, or is it split down the middle, with half treated as his estate ?

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Hi Honey... thanks for your input. :)

 

The solicitor is letting members of both families into the property this weekend (although she will be present) to go through various personal belongings.... and then the property will be sold. She is talking of the sale of the property in terms of "his half", which is why I'm unsure, although she may not have seen the Deeds yet.

 

It's still too early for the Will to be read (less than 28 days after death), so I'm a little surprised that people are allowed in to be honest, but there you go.

 

Initially, I thought the property would be split in half, but I'm not sure because I've since read that joint buyers need to go for a "severance of tenancy" in order to become "tenants in common" and have separate interests. I don't think that's happened.... but it's the unmarried status that's got me on this one.

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youre right it would need to be severance of tenancy, is their anyone acting on behalf of this lady in question, usually there is someone appointed to control finances etc in the situation where a person becomes "infirm" ?

honey x

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We had a similar family scenario - it worked out that although jointly purchased whilst one was still alive they were allowed to live in the property then when they were both deceased each willed their half to the respective families. As the woman is in a care home surely they should wait until the will is read as it is not clear what he has done with his half. I think she could do with some good representation.

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I think it depends whether registered as 'joint tenants' or 'tenants in common' - a question which myself and my partner were asked when we purchased our house last year.

 

A quote from a website which explains those terms:

 

If you buy a house jointly with someone else (your spouse, lover, a relative or friend) then it is important to decide whether you will own the property as joint tenants, or tenants-in-common. So what's the difference?

If you are joint tenants then each of you jointly own the entire property (technically its held by you in trust for yourselves!). The consequence of this is that upon the death of one party their interest in the property passes automatically to the survivor. It is therefore usual for married couples to buy a property as joint tenants.

If you decide to hold the property as tenants- in- common, then each owner has a distinct share in the property. If there are two owners this will automatically be half each, if three a third each, and so on. Alternatively you can decide between yourselves what share of the property belongs to each owner. For example if 2 friends were buying a property together and one contributed more to the purchase price than the other, this could be reflected in the respective shares of the property, say 75% and 25%. The important point is that each of the tenants-in-common always owns their share of the property, and are only entitled to that percentage of the sale proceeds, if sold during their lifetime. If they die then their share of the property forms part of their estate. It does not automatically pass to the other owner(s).

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As Jampot says, everything hinges around exactly how they bought the property in joint names.

 

This is not yet clear to us, and until it is any advice as regards distribution of the proceeds is, at best, speculative.

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Thanks to everyone.... :)

 

Both the man (who has recently died) and the lady (with dementia, in a care home) share the same solicitor. The solicitor is Executor of his will and acting Power of Attorney for the lady... so should be familiar with the whole scenario.

 

I agree that it seems to hinge upon how the Deeds were draw up, but as the Will has not been read yet (although the solicitor has disclosed his beneficiaries to the next of kin)... anything said on here is speculative and at this point, I'm unsure as where the Deeds are; with the solicitor or with his bank.

 

When the lady went into the care home, the man continued to live in the property without any worries. There was no mortgage on it and the lady had enough funds to fund her own care without the house being an issue. Now that he has gone however, his extended family are tripping over themselves to get in there.... and as the lady is still alive (albeit in a care home), I feel that this is a little disrespectful to her family.

 

They are going in there tomorrow in any case.... but there does seem to be another agenda going on.... Also, I was always under the impression that a period of time had to go by before any of this stuff happened and before the contents of a Will were made public anyway. :confused:

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Bad move having the same solicitor, I personally think she would be well advised to have another legal professional looking after her now given all the circumstances as without this they could really be taking advantage of her as we all know there are some very unscrupulous people about regardless of their profession.

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Thanks to everyone.... :)

 

Both the man (who has recently died) and the lady (with dementia, in a care home) share the same solicitor. The solicitor is Executor of his will and acting Power of Attorney for the lady... so should be familiar with the whole scenario.

 

I hope that there is no potential conflict of interest there...

 

I agree that it seems to hinge upon how the Deeds were draw up, but as the Will has not been read yet (although the solicitor has disclosed his beneficiaries to the next of kin)... anything said on here is speculative and at this point, I'm unsure as where the Deeds are; with the solicitor or with his bank.;
Deeds are irrelevant. Just pretty old documents to look at. What matters is how the property is registered with the Land Registry

 

Now that he has gone however, his extended family are tripping over themselves to get in there.... and as the lady is still alive (albeit in a care home),

 

If they were registered as joint tenants (which tends to be the norm), they they will have to go and whistle as she now owns it all. If they were registers a tenants-in-common, then his proportion will fall to then via his will, but the solicitor (with her POA) will have to agree to any sale - otherwise they will simply have to wait.

 

Also, I was always under the impression that a period of time had to go by before any of this stuff happened and before the contents of a Will were made public anyway. :confused:
AFAIK, a will becomes public (ie available to anybody at all) upon grant of probate. Prior to this, the beneficiaries will usually have been made privy to the contents.
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I did wonder about the conflict of interest issue.... but the next few days should tell one way or the other. I assume that the solicitor will need to check the Land Registry at some point before making any decisions re. the property, although it's going to be sold now for sure.

 

The lady with dementia has no awareness of anything whatsoever... it's very sad. The only blessing is that she has no awareness of her partner's death.

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Deeds are irrelevant. Just pretty old documents to look at. What matters is how the property is registered with the Land Registry

 

What do you think the HM Land Registry base their Register on - word of mouth? Paper deeds are still the fundamental proof of ownership, covenants, restrictions, etc.

 

The copy you get from Land Registry online is a summary of the Deeds submitted on first registration or subsequent transfer of title. But you still need the deeds for the precise details.

 

I deal with Land Registry as part of my work, and I have never noticed the Proprietorship termed as joint nor tenants in common - and this out of hundreds of titles. There is a section on Land Registry form TP1 (transfer part of title) where the division can be stated, but this is not then reported on the title.

 

The default is assumed as Joint (50:50) ownership, whereas Tenants in Common is defined by a document called Deed of Trust - this would be kept with the deed pack of the property.

 

John

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So there would need to be a Deed of Trust for it to be a "tenants in common" scenario then.... and without a Deed of Trust, it would belong to the lady 100% following the death of the man ? Have I got that right ?

 

That would open up a huge can of worms with his beneficiaries... they wouldn't be happy with that at all. However, there could well be such a document, since the lady was quite savvy with property legalities in the days before her illness took hold.

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  • 2 months later...

Just thought I'd update this thread....

 

It eventually transpired that the lady and gentlemen were registered as tenants-in-common, which means that the property will now be sold and the proceeds split in half and distributed accordingly.

 

Both sides have been very respectful throughout... and even though both families had to enter the property to go through various belongings, clean and dispose of unwanted things, etc.... it all went very, very smoothly and everyone has remained friends.

 

:)

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What do you think the HM Land Registry base their Register on - word of mouth? Paper deeds are still the fundamental proof of ownership, covenants, restrictions, etc.

 

The copy you get from Land Registry online is a summary of the Deeds submitted on first registration or subsequent transfer of title. But you still need the deeds for the precise details.

 

I deal with Land Registry as part of my work, and I have never noticed the Proprietorship termed as joint nor tenants in common - and this out of hundreds of titles. There is a section on Land Registry form TP1 (transfer part of title) where the division can be stated, but this is not then reported on the title.

 

The default is assumed as Joint (50:50) ownership, whereas Tenants in Common is defined by a document called Deed of Trust - this would be kept with the deed pack of the property.

 

John

 

There is no need to complete a deed of trust to hold the property as tenants in common. You are correct that the register will not specifically say whether the property is held as joint or common. However, if it is a tenancy in common there will be a restriction on the register preventing a disposition by a single named owner.

 

This ignores severance by operation of law on, say, bankruptcy but in most cases the restriction is the way to tell.

 

Paper deeds have no significance once the property is registered, The register is definitive as to ownership. The deeds are useful historically if a dispute arises but nothing more. You will find that most mortgagees don't even bother keeping them these days and generally send them to the borrower once the registration process is complete. The Land Registry will hold copies of certain documents but, again, these are useful primarily in relation to disputes hinging on historic ownership.

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