Administering An Estate Where a Consent Order Is Involved...

[Lyates1985]

Hoping someone can give me some advice here but

 

 

it seems to be quite a unique situation,

with a solicitor even shrugging her shoulders and saying she'd rather not get involved due to lack of experience..

. Apologies in advance for the long post but it is quite complex!

 

My aunt passed away recently leaving me, my brother, and my sister as administrators.

She owned a house as "Joint Tenants" with her ex husband.

 

 

Upon their divorce in 2011, a consent order was made whereby the house was to be sold

and the net profits split 60/40 in her ex husbands favour,

with the actual sale of the house to be conducted by him and his solicitors.

 

 

For whatever reason, the house was never sold and, frustratingly, the title deeds were never amended to show a "Tenants in Common" situation.

There is also a joint mortgage outstanding, with 6 years remaining before its cleared.

 

Now, neither he nor his solicitor are disputing the sale of the house or the split of the net proceeds,

but he's not being forthcoming with the outstanding balance and whether or not there is any kind of life assurance policy included in the mortgage.

 

 

I've approached the mortgage company but, as anticipated, they won't discuss the account with me as there is a surviving account holder.

I need this info in order to apply for a grant of probate.

 

I'll deal with that issue somehow in time,

but my real concern is just how powerful this consent order is.

 

 

If I officially notify the mortgage company of my aunts passing I'm assuming they'll remove her name from the mortgage

and possibly start the process of getting the title deeds amended to show a "Sole Tenancy".

 

 

Will either of these actions negatively impact the estates claim on the property or over-rule the consent order?

Or does the presence of an unfulfilled consent order usurp all else?

 

 

I don't want to go ahead and notify the bank if it eventually knackers our claim to the property

- I can't imagine her creditors being all too pleased if it's the executors fault there's no money for them!

 

The solicitor was less than helpful

 

 

now I really am stuck and would appreciate some advice if anyone is legally minded or experienced in such matters!

 

 

It would be ideal if we could change the deeds to reflect the "Tenants in Common" ownership status

but, from what I've read,

that's simply not possible now one of the joint tenants has died.

 

 

Can anyone confirm that?

 

If anyone can make sense of this, well done and I'd appreciate any helpful responses.

[dx100uk]

you must inform the mortgage company!

 

 

as an executor of a will

you are entitled to act upon her behalf

send the mortage company an SAR

 

 

get all the details.

 

 

then act.

 

 

dx

[Lyates1985]

As the mortgage is a joint, secured debt and is still being paid, and given the fact that if there were no insurance sole liability for it would pass to the surviving debtor anyway, there really is no need to jump the gun and inform the mortgage provider before obtaining a grant of probate. Aside from the fact I obviously need info from them...

Also, I think an SAR is unnecessary. Once I've obtained a grant of probate they'll deal with me without issue, and there's a good chance they'd refuse to disclose any info requested in a SAR due to the sensitive nature and because, as yet, I have no rights to view or access any of that data...

 

What I am concerned about is whether or not a court would take the view that by informing the mortgage company and thus allowing her name to be removed from the title deeds and the mortgage, I have indirectly given the impression that the estate is not interested in the house. Is the consent order at all influenced by any of this or does it stand regardless, given that it predates my aunts death, the amendment of the deeds, etc.? Is it at all possible, as executor, to amend the deeds to reflect a "Tenancy in Common" situation, with the consent order serving as "notice served"?

 

All far too complicated!

[stevemLS]

The order is the order and it is not affected by the death of your aunt, the estate retains exactly the same interest in the property as that your aunt previously held.

 

As you will know, though, joint tenants rights pass to the surviving tenant on death of one or other of them.

 

This really is quite a complicated question, my view would be that the court order would prevent the automatic passing of the interest.

 

I can't in theory think of any reason why the Estate can't change from joint tenants to tenants in common, obviously you would need Probate in order to deal with it, not sure whether there is a will or not as you refer to yourselves both as Administrators and Executors.

 

Information about how to sever the joint tenancy is here https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

[Lyates1985]

Very complicated isn't it! Your way of thinking is pretty much the level I'm on, but obviously I don't want to do anything subsequent to her passing that could jeopardise any claim she/her estate has... I really don't know if the ex husbands solicitor could infer I wish to make no claim to the property if I indirectly allow her name to be removed from the mortgage etc by informing them of her death. No one seems able to definitively state "yes the consent order usurps all else regardless" or otherwise...

 

Sorry for the confusion. There is a will where a solicitor was appointed executor but as a small firm they decided to renounce as the situation was too complicated and they were concerned they wouldn't get paid, leaving the residual beneficiaries (me, my brother and sister) to administer the estate.

 

Thanks for the info and your opinion

[AndyOrch]

So your only problem is that the Mortgage company wont comply because you have not yet attained probate ?

 

You dont need the property details to apply for probate (PA1)

 

You complete IHT205 if the value of the estate is less then 325K with no inheritance tax.

 

 

I assume Aunt was still paying the mortgage...look at her statements with regards to balance owed?

 

Regards

 

Andy