Death of a partner complications!

[devjim]

My brother-in-law moved into a care home in November 2021 due to his illness.

He is mostly immobile and has lost most of his ability to speak.

He and his partner lived together in a jointly owned home, but their relationship ended when he became ill and she stopped visiting him.

 

In May 2022, we found out that she had passed away when we visited their home to collect some of his clothing.

 

We are unsure of the normal procedure in situations like these, as we have not heard anything about her passing, including the date of her death or funeral arrangements. Her estate now owns half of his home, but he wishes to sell it to pay for his care home expenses.

 

We have identified her solicitor and attempted to contact them regarding the house, but they have refused to speak with us.

 

We are at a loss as to what to do next, as almost a year has passed and there has been no progress.

 

Could you please provide any advice on how we can proceed?

 

Thank you.

[Ethel Street]

The solicitor is not allowed to discuss anything with you for reasons of client  confidentiality. 

 

He should be able to tell you if there are Executors for the partner and if so put you in touch with them. Even if only to pass on a request that the Executors contact you.

 

It can't be in either party's interest to leave the house empty. Discuss direct with the Executors if you can, don't pass everything via the solicitor.

 

Does your BiL still have mental capacity to sell the house? If not you will have a further complication unless someone has Power of Attorney for him.

[Ethel Street]

As a matter of urgency you need sort out wit partner's executor/family who is doing what about things like insuring the house, making sure it is secure, regular inspection visits.

 

Remove all valuables from the house if not already done.

[honeybee13]

I agree with Ethel.

 

Even if the house is insured, the company needs to know it's empty. They may agree to continue cover - they did with my mother's house. If not, you will need one of the specialist companies.

 

HB

[Ethel Street]

Have you searched on gov.uk to see if Probate or Letters of Administration have been granted? If so that will include the partner's Will and tell you who she has left her half of the house to.

 

https://probatesearch.service.gov.uk

 

Are you certain they co-owned as 'Tenants in Common' not as 'Joint Tenants'?

 

https://www.co-oplegalservices.co.uk/media-centre/articles-jan-apr-2017/tenants-in-common-what-happens-to-a-property-when-you-die/

[devjim]

Thank you for your replies.

 

BIL has mental capacity although his memory is going, myself and my wife have Power of Attorney for him.

What we have found out so far is that her Solicitor is her executor, as mentioned before I have tried to contact the solicitor but as you say I am told that they cannot speak to me only another solicitor.

 

Therefore we did appoint a Solicitor on BIL's behalf thinking that the house would be sold, but even our solicitor cannot get any information as to the situation.

 

We have had the house cleared and tried to keep any paperwork that we came across, unfortunately BIL was not very organised and it is all a complete mess.

 

Partner had no family and we live some miles away from the property so regular visits are a problem, plus we are not spring chickens ourselves in our mid eighties.

 

I have just found out that Probate was granted on the 5th January 2023, the will only states certain sums of money to go to certain people, no mention of the house.

[Ethel Street]

Who gets the partner's "residual estate"? ie everything that's left after the cash sums to specified individuals have been paid? That's who will get her share of the house if it isn't specifically mentioned.

 

Are you certain she co-owned as Tenant in Common?

 

Probate will state the total value of her Estate. Once you deduct the specific cash bequests from that, and something for the funeral costs and solicitors fees, is the amount left large enough to include her half of the house? 

 

As you have appointed a solicitor to act for your BiL that's who you need to ask for legal advice on what to do next to force a sale of the house. It is possible to get a court order if the partner's Executor/solicitor won't co-operate but that is expensive and time consuming and success is not guaranteed. Getting the Executor's agreement is best.

 

It's hard to understand why the partner's Executor wouldn't want to sell. Even more concerning that you don't know whether it is even insured. And if it is insured whether your BiL is named as a joint policyholder to protect his interest in the house.

 

Keep putting the pressure on your BiL's solicitor to move this forward. That's what you pay them for.

[stu007]

Hi

 

Sorry for your situation in dealing with this which will be stressful for all concerned.

 

1. You say your Brother in Law who is in a Care Home has Capacity (unless he has been officially diagnosed as not having capacity by they
Hospital with a Medical Diagnosis) then he will be classed as having Capacity.

 

2. I agree that there Solicitor will not discuss anything to do with the Property etc due to Data Protection as it has to be the Brother in Law.
Now the but (note 1. above) it does not stop you doing a letter for your Brother in Law to sign giving you Full Authority to Act on His Behalf.

 

3. Now to see if the Brother in Laws Partner has a Power of Attorney or a Deputy registered with the Office of the Public Guardian you will need
to fill in the forms from this link: (note 2. above as you will need to send that letter with these forms). Also this way you will see if a Power of Attorney is in place or not.

 

/assets/static/govuk-opengraph-image-dade2dad5775023b0568381c4c074b86318194edb36d3d68df721eea7deeac4b.png

Find out if someone has a registered attorney or deputy - GOV.UK

WWW.GOV.UK

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Download and fill in this form to find out if someone has an attorney or deputy acting for them.

 

4. As for the Property itself you will need to if available check the Deeds for the Property to see who is actually named on the Deeds if you can't find them then check the Land Registry (note there is a fee for this and you may also need the letter from 2. above) see this link:

 

/assets/static/govuk-opengraph-image-dade2dad5775023b0568381c4c074b86318194edb36d3d68df721eea7deeac4b.png

HM Land Registry - GOV.UK

WWW.GOV.UK

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We register the ownership of land and property in England and Wales. HM Land Registry is a non-ministerial department.

 

 

5. Did the Brother in Laws Partner has a Will in place and Registered? if unsure you can check but again there is a fee involved and it is not cheap depending on the type of search you want so be aware of that (note you will need to send letter from 2. above) this is the link:

 

Search for a Will | National Will Register

WWW.NATIONALWILLREGISTER.CO.UK

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Search for a Will with The National Will Register & Certainty Will Search service. Certainty Will search finds lost, unknown & later Wills.

 

 

I also note from your post#6 that you mention that Probate was Granted on 5th January 2023, the will only states certain sums of money

 

So who exactly is named on the Probate from the Public Guardian office to Act as Executor and does that Probate specifically state financial and Medical because if it only state Medical then they can't deal with the Financial matters nor the Will it must clearly give the Financial Powers.

 

The reason I say the above I have Probate for my own Dad who is in a Care Home and is on End of Life and I have both Financial and Medical Powers and my Dads Will.

 

You need to get your hands of a copy of the Probate to make exactly sure they have either both Financial and Medical Power and not just either Financial only or Medical Only as this is Critical as to what they can do when holding Probate it's not as simple as them saying we have Probate it's the Powers they have within that Probate.

 

With the Will you need to be 100% certain it has been signed and witnessed properly? (is the Will Registered?) if the Will hasn't been Signed and Witnessed Properly it will cause issues.

 

You look after yourself and remember your health is important too.

[Ethel Street]

Just to add that Powers of Attorney expire when the person giving it dies. After the death of the 'donor'  the 'attorney' can no longer use the POA.

[devjim]

UPDATE

 

I have been searching through BIL paperwork and have come across these:

 

Dated: 23rd Feb 2022 - Intention to sever a joint tenancy.

I, XXXXXXXXXXXXXXXXXXXXX, by this letter give you notice that from

February 2022, I wish to sever our joint tenancy in the property known as XXXXXXXXXXXXXXXXXXX (the Property), registered at HM Land Registry

under title number DN XXXXXX.

We will now hold the Property as tenants in common in equity in equal shares

I will apply to the Land Registry to place a Form A restriction on the title to reflect

this.

 

AND:

 

Dated: 4th March 2022 - Please find enclosed a letter whereby our client gives you notice that she has severed her joint tenancy in equity over your home. You need do nothing with this letter as this severance is a unilateral one and an application to the Land Registry will be made in support of this.

 

Therefore it looks like 50/50 although BIL say's he paid the bulk of the money for the property but can find nothing to back that up.

 

Partner died on the 8th May 2022 about 5 weeks later than above

 

[BazzaS]

Unless held by a single individual the “legal” title to a property is ALWAYS held as a joint tenancy, and passes on by survivorship. This is the information held at the Land Registry under the legal title.

 

The “beneficial” (or “equitable”) interest in the property can be held under joint tenancy or tenancy in common. By “severing” the joint tenancy, the partner made the beneficial interests a tenancy in common, allowing their share of their beneficial interest to be passed on in accordance with their will (or the rules of intestacy if there wasn’t one).

 

So 3 scenarios:

for both:

A) the legal title was held by them both, or

B) the legal title was held by your BIL,

then,

 

currently your BIL holds the legal title to the property, and holds the beneficial interest of their ex-partner on Trust, for the beneficiary / beneficiaries of the Will.

 

If, however,

C) the legal title was held by your BIL’s ex-partner, then the legal title passes to the estate, and the executor/s holds your BIL’s beneficial interest on trust for him.

 

The presumption is a 50/50 split between your BIL and their ex-partner, though this is rebuttable (where different intent of the parties can be shown : did they have an agreement / discussion based around this?)

 

For A or B: your BIL can sell the property but needs to pass the ex’s share on to her estate.

 

For C : your BIL should contact the ex’s executor, reminding them they have a fiduciary duty towards the BIL, which comes ahead of any bequests the ex-partner may have made.

 

 

 

[Ethel Street]

@devjim so this confirms the house is co-owned as Tenants in Common which was your assumption back in post #1.

 

It is correct that partner can unilaterally change Joint Tenants to Tenants in Common ("sever the tenancy") without your BiL's consent. The default is a 50/50 split.

 

So my advice remains what I said in post #7. Neither party (your BiL or partner's Executors) can sell without the agreement of both parties, at least not without getting a court order

 

All you can do practically  is negotiate with the partner's Executor to agree to sell the house and split the net proceeds 50/50.

 

If they insist on negotiating only through your BiL's solicitor you probably have to do it that way, although I can't for the life of me think of any legal reason why the Executor Solicitor can't negotiate directly with your BiL.

 

So show your solicitor the documents you found and get them working for their fees.

 

At this stage it's difficult to understand why Executor wouldn't want to sell asap. It costs both parties money to leave it empty - utility bills, insurance, council tax (who is paying those at the moment?).

 

Empty houses have a greater risk of theft and vandalism that could significantly impair its value. Damp other deterioration gets worse and needs fixing before sale. Or even  be illegally occupied by squatters.

 

Could the reluctance be to do with whoever is inheriting the partner's half share? 

 

I asked earlier who is the residual beneficiary in the partner's Will. Do you know them? Partner's Executor has a fiduciary duty to the beneficiary and maybe they are resisting sale? Or even can't be found?