Joint proprietorship restriction delaying probate

[jazzfestival]

Situation - my brother died in 2020 , his wife remains in the house They have mirror wills and my brother left his estate to his wife.
. The firm dealing with probate, who are not solicitors and were engaged by one of the executors ,have finally had probate granted. In their name (as usual in firms of this type I understand) for the benefit etc of executors.
They are saying that they need (still!) to sort some queries before they can complete the administration of the estate .
One of their queries is the restriction
“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”
on the property .
They have contacted the solicitors who prepared the will regarding this.
I can't understand why this standard entry is a difficulty for them or why they are contacting the will writing solicitors regarding it .
The land reg shows the wife as the registered owner.
The firm dealing refer to my brother and wife as joint owners.
My question is - is this a complicated situation and am I being unfair thinking that the firm dealing should know how to deal with it?
What are the issues that I might be ignorant of that is making this complicated. Or complex.
Thank you for reading and for any comments .

[jazzfestival]

Further musings on which comments/clarification would be hugely appreciated .

I will also add that the quoted restriction was entered on the LR a month before my brother died and also that his wife is in poor health and was expected to predecease him .

1 does the quoted restriction indicate that they were tenants in common ?

2 my brothers will contains this
I give my property free of inheritance tax to the property trustees to hold upon the following trusts
The trustees are his wife and two named executors .
Does this have tax implications and also implications for funding care fees ?

[jazzfestival]

I've just read through this
https://www.phrsolicitors.co.uk/legal-services-for-individuals/wills-and-probate/resources/what-happens-property-left-trust-will
and think a will trust has been set up for IHT purposes and for the delicately phrased motive
To provide for family members who need care without disrupting their eligibility for Government assistance.

Though if a will trust has come into being because of my brother's death should the name of the owner change on the land registry to show ownership by a Trust and not an individual ?

Moderator Message:
Edit to fix url tags (chas49)

[jazzfestival]

apologies moderator ,and now I've repeated my error .

Moderator Message:
No problem - duplicate post deleted (and subject edited for clarity) (chas49)

[modellingman]

Situation - my brother died in 2020 , his wife remains in the house They have mirror wills and my brother left his estate to his wife.
. The firm dealing with probate, who are not solicitors and were engaged by one of the executors ,have finally had probate granted. In their name (as usual in firms of this type I understand) for the benefit etc of executors.
They are saying that they need (still!) to sort some queries before they can complete the administration of the estate .
One of their queries is the restriction
“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”
on the property .
They have contacted the solicitors who prepared the will regarding this.
I can't understand why this standard entry is a difficulty for them or why they are contacting the will writing solicitors regarding it .
The land reg shows the wife as the registered owner.
The firm dealing refer to my brother and wife as joint owners.
My question is - is this a complicated situation and am I being unfair thinking that the firm dealing should know how to deal with it?
What are the issues that I might be ignorant of that is making this complicated. Or complex.
Thank you for reading and for any comments .

The firm dealing with probate will be ultra-cautious in dealing with this matter because it will have an eye on (a) the clock - particularly if their contract is on a time and materials basis rather than an agreed price basis and (b) their future professional idemnity insurance premiums should they make an assumption about the house ownership which subsequently turns out to be false.

As you note in a later post, the restriction you quote is indicative of an ownership of tenants-in-common. Whilst this is indeed a "standard entry" for the register it does not necessarily imply ownership in equal shares. Often this is the case but as this page advises (in the table half-way down the page)

[Documentation] not usually held by HM Land Registry - A 'trust deed', which is sometimes used to state each owner’s share in a property when they are tenants in common...

Therefore, in order to correctly assess the value of your late brother's estate for IHT purposes (a prerequisite for probate), the firm will want to verify his ownership share and a logical starting place for this will be the solicitors who drew up the wills.

One thing I am slightly puzzled about is the ownership you say is showing on the Land Register. Your text implies your late brother's wife is registered as the sole owner. Am I misinterpreting? I would have expected her to be shown as the joint owner along with your late brother, since the tenants-in-common ownership would preclude any changes being made to the register before a grant of probate is received.

modellingman

[jazzfestival]

Thank you modellingman that's interesting and helpful .

The firm are working on a fixed price .It's been three and half years to reach this point .I'm a bit grumpy that they've not clarified this point before now ,but that's a different issue and maybe they had to obtain the grant before they could approach this query .

When I spoke on the phone i was told that my brother and his wife were joint tenants .

The entry on the LRis as below
B: Proprietorship Register
This register specifies the class of title and identifies the owner. It contains any entries
that affect the right of disposal.
Class of Title: Title absolute
Entry number Entry date
1. date . PROPRIETOR: wife's name only of address of property

I don't understand the assumption that the solicitors who drew up the will can provide information as to who owned what percentage of the property .

[jazzfestival]

The restriction entered on the LR is dated the month before my brother died .Perhaps the register wasn't updated in line with that entry ?
As far as I can understand my brother's will sets up a Will Trust with the property now being held in a trust with my sister in law and 2 other executors being trustees .

[chas49]

This does appear to be less than straightforward.

In your first post, you said:

The land reg shows the wife as the registered owner.
The firm dealing refer to my brother and wife as joint owners.

Notwithstanding the restriction, the LR appears to show that your SIL is the sole owner - which implies a change of ownership from the joint tenancy - by survivorship. But who would have applied to the LR for that change - and why would it have been effected given the restriction.

OTOH if they weren't joint tenants, the will would only have operated on your brother's share. And the LR entry is even more confusing.

Either there's some information we don't have, or something's gone wrong. You (or the trustees/executors) almost certainly need proper legal advice. Whether the firm administering the estate are the right people is a moot point.

[jazzfestival]

I'm really at a loss .
I do know that my sister in law had considerably more assets when she and my brother married and that the property in question was purchased at the time of their marriage. Which would suggest to me that the property was bought with her finances and possibly therefore was registered in her name alone.
She has poor health and she was not ,I think , expected to survive her husband , my brother ,whose death came more quickly than expected.
My guess is that the change to tenants in common was a made because of health concerns , though I think both believed that my brother would survive his wife . It only became clear a couple of months before his death that this was unlikely .
The entry of the restriction is about 6 weeks before his death so I feel this must be pertinent in some way.
In a telephone conversation with the person dealing with my brother's probate the reference was to them as joint tenants but perhaps the individual misspoke ?I didn't query it .
I suppose the share of property held at the time of death determines immediate tax obligations.but the will leaves his share to be held in a property trust so I'm hoping that a future sale wouldn't be complicated by this confusing LR entry.
I hope I'm making sense as this is all far beyond my skill set !

[jazzfestival]

I'd just like to add that this is all perfectly genuine. Some years ago I asked for advice on this forum ( or it's previous form) about an executor citing a death bed conversation overriding a will so that 4 beneficiaries were removed .
I'm fearful that long time posters who helped me at the time , like Clitheroe, will think "here comes Jazz again with a fantastical tale of wills and their administration".

[jazzfestival]

I should perhaps say that the firm dealing now feel that the way forward is to take the advice that I passed on to them from the land reg and complete forms to remove the restriction.
The advice was given when I phoned the LR and explained that my. brother had died and that there was a form A restriction .
I'm worried now that the firm dealing with probate don't know what they are doing , maybe the restriction is important because it indicates a share (who knows what size) in the property ?
And although the will passes my brother's share to a trust the restriction might indicate some tax liability and also have IHT implications .

I think I'm going mad and seeing problems that don't exist.

[chas49]

I'm far from an expert (and hopefully one will be along soon - as before). However, if you think that the property was in fact your SILs that would explain the LR entry as sole proprietor. I think the LR record should show the date of that registration which would support (or otherwise) this contention.

It wouldn't explain the restriction I think. Who applied for the restriction - was it the solicitor doing the wills? In which case the suggestion of asking them might actually be a relevant one after all.

Don't worry about coming back to ask more questions. If you are able to keep the discussion to one thread that helps a bit perhaps.

[modellingman]

I'm worried now that the firm dealing with probate don't know what they are doing , maybe the restriction is important because it indicates a share (who knows what size) in the property ?

And although the will passes my brother's share to a trust the restriction might indicate some tax liability and also have IHT implications .

From the Land Registry's perspective the restriction simply acts to prevent them transferring the title of the property (ie ownership) without the the consent of all the owners shown in the register. The Land Registry will neither know or care about the specific shares that individual owners have in a jointly owned property.

Similarly, the Land Registry will not hold or know about the will. The will (along with its consequential trust) and the restriction are two completely separate matters. Any IHT or tax consequences will flow directly from the will and not from the restriction.

I agree with chas49's analysis. It does not seem to make a whole lot of sense to be both the sole owner of a property (as your sister-in-law appears to be) and to have a restriction on it.

You make no mention of who stands to benefit from the property when your sister-in-law dies. In particular, if these potential beneficiaries are different from those who would have benefitted if the order of deaths had been sister-in-law first then, possibly, the registration of the restriction and the use of a will trust might have been an attempt to protect the interests of your brother's beneficiaries in the event (as happened) that he died first. Is the trust intended to give your sister the right to live there for as long as she wishes and then, either on death or moving out, the property is sold with your brother's share of the proceeds disbursed in accordance with his will?

modellingman

[jazzfestival]

Thank you Chas .
Yes the LR entry for the proprietor gives an entry date from over 30 years ago .
The restriction is dated only 3 years ago.
Showing my ignorance here but does it matter who applied for the restriction to be put on ?
Is it because we need to know which individual it was protecting and a necessary factor in completing the LR forms to remove the restriction ?
Do properitiship restrictions override a will ? I think I've read that they do .

[jazzfestival]

Modellingman they are mirror wills with the same beneficiaries whoever died first .
I understand that as far as the LR is concerned the will and property trust are neither here nor there and are nothing to do with them.
Yes my sister in law has a life tenancy and other caveats are listed regarding her wishes and benefit and written agreement being required in the event that consideration is given to selling , raising funds, downsizing etc .
I hope that answers the points you raised ,I don't seem to need able to re view your post without loosing mine .

[chas49]

Thank you Chas .
Yes the LR entry for the proprietor gives an entry date from over 30 years ago .
The restriction is dated only 3 years ago.
Showing my ignorance here but does it matter who applied for the restriction to be put on ?
Is it because we need to know which individual it was protecting and a necessary factor in completing the LR forms to remove the restriction ?
Do properitiship restrictions override a will ? I think I've read that they do .

I don't believe it matters as such who applied for the restriction - I just thought it might give a clue as to the reason - or who to ask about the reason

[jazzfestival]

Chas you said

Notwithstanding the restriction, the LR appears to show that your SIL is the sole owner - which implies a change of ownership from the joint tenancy - by survivorship. But who would have applied to the LR for that change - and why would it have been effected given the restriction.

OTOH if they weren't joint tenants, the will would only have operated on your brother's share. And the LR entry is even more confusing.

I'm not understanding why they would be assumed to be joint tenants, I doubt know if you can help me ?
My thinking is that my brother's wife owned the property in her name but that when she and my brother became unwell they decided to become tenants in common, hence the restriction.
Would one expect to see the property title in both names at that p point?
The firm dealing with probate have advised that they cannot complete the forms ST5/RX3 because the TIC restriction does not comply with the Will’s provisions.
I can understand that the LR probably need something to amend their entry to take account of the death and that obviously the will is not their concern.
I can't understand why removing the restriction , if it conflicts with the will, is a problem.
The will sets up a property trust with my brother's share of the property ,if indeed he had one,going into a trust .
I don't know which takes precedence, in this circumstance ,a will or a LR entry restriction.
Maybe the LR restriction is an error , can it exist if the property is in only one name ?
I suppose if my brother didn't have a share then the part of his will relating to a property trust doesn't make sense.
I'm sorry to ask for more advice,I hope I'm not overstepping .

[chas49]

(Snipped for brevity)
I'm sorry to ask for more advice,I hope I'm not overstepping .

Don't worry!

I need to repeat the caveat that I'm not a lawyer, and any advice given on this forum should be taken with caution.

It appears from all you have said that:

• your sister-in-law was the sole legal owner of the property.
  
• At some point your brother and his wife agreed that they should split the ownership of the property as equal beneficial owners - holding this as tenants-in-common.
  
• Your brother's will creates a trust in respect of his share of the property.

The LR entry (correctly) only shows the legal title to the property. The restriction reflects the change in beneficial ownership.

As I suggested previously, if you can establish which legal professional did the work to get the restriction entered (assuming you don't think your brother did it himself), they might be able to shed more light on what happened.

Hope that helps

[jazzfestival]

Thank you Chas, that's very kind .
And a good , clear summary of the situation.
I don't understand why the reasoning behind the restriction is important but I think I'll ring the slcrs who dealt with the will to see if they know . And then perhaps I'll understand why it's important to know more about who applied and why.
And why it's a stumbling block in executing the will .
Thank you again

[jazzfestival]

As you all correctly advised and the firm dealing knew - the answer lay with the solicitors who drew up the will.
My brother and sister in law were joint tenants but an error in the spelling of his name resulted in the entry being only in persons name.
The solicitors have the documentation relating to the joint tenancy, the correction of the name, the severing of the joint tenancy etc.
It seems that the LR shouldn't have put the restriction on before the correction was made to the title being in only one name
The firm dealing with probate now have this info .