Late father in laws estate, advice needed

[Linnet]

My dh has received a letter today, oddly not from a solicitor but from a secretarial service on behalf of fil’s wife, in regards to his late fathers Will. He has previously had a letter from a solicitor who outlined what he and his brother would inherit from the Will who the wife then decided not to use anymore.

There is a property of which FILs half has been left to my dh and his brother with the wife (2nd marriage) having a lifetime interest…

in relation to”property” and the outstanding mortgage loan if the property were to be sold then “wife” would pay in full the balance from the net proceeds. Having paid the balance, including your half share of this she would retain the other half for herself absolutely. “Wife” is seeking clarification regarding the responsibility of the monthly mortgage payment, which was in joint names and will revert.

Is this something she can legally do? Can she sell the property without the agreement of my dh and his brother? And keep any of the money leftover? Would she not have to split any money leftover between the three of them?

we are going to try to get legal advice on Monday but things are complicated by the fact that the Will was written in England and we are in Scotland.

any advice gratefully received

So on behalf of your mother ? Step mother ? ? Ex FIL ?

Sounds as if there is a hefty mortgage and she can't afford to pay it. Maybe your DH and his brother should speak to her and find out what is happening.

The letter has been sent On behalf of father in laws wife, dh’s stepmother.

Did your late FIL die in England? If so then it should be English law that prevails. Who is the executor of the will?

sorry should have put it in the original post, we can’t contact her as she has cut off all communication since FIL died.

The wife is the executor

Sorry and yes he died in England

I read it as she cannot afford the mortgage, and so can sell the house to pay off the mortgage and then will split what is left. Half to her and .25 to each brother. Was she left a lifetime interest plus half the property?

The last bit means she is researching whether she is solely responsible for the mortgage or if the brothers need to contribute. If she cannot afford the mortgage property will need to be sold as the debt does not transfer.

They were tenants in common. FIL left his half to his two sons, dh and his brother with the wife having a lifetime interest until her death.

We don’t know how much the mortgage is on the property all we know is that it’s rented out at the moment.

Would she need dh and his brothers agreement before it could be sold?

Would she need dh and his brothers agreement before it could be sold?

If she can't afford it, what do you suggest as the way forward? Would you and your brother be prepared to pay the mortgage on 'your half' while she lives there for her lifetime?

That wording seems deliberately ambiguous and if she has cut off contact then I suggest a chat with a solicitor and a formal instruction. If she has a life interest in half the property then she may not be able to sell it and putting aside the ambiguous wording, it seems unclear what her intentions are regarding the son's half after sale. Even if they choose to agree to sell, there will be lots of details around fair valuations and arm's length sale to prevent enrichment but it may not be in the son's interests to exit the investment in property and go to cash. If she is refusing to speak then a solicitor's letter and, if needs, be an escalation, may force the discussion that might be required so the son's can understand their position and look at the options.. There are a range of options depending on their own financial position.

You living in Scotland does not, of itself, complicate things at this stage. You just need a solicitor who can advise on the law in England and Wales.

Would she need dh and his brothers agreement before it could be sold?

Depends entirely the wording on the Trust. It should clarify whether she can sell and pay off the mortgage as proposed. Its unusual to have a property with a mortgage still in place, and sometimes the estate of the deceased could pay off the mortgage? Insurances etc? The person living in the property is usually expected to pay all bills as they are enjoying the benefit of the home, but as its rented out and as there is a mortgage, selling it and paying off the mortgage is the most sensible thing to do and I doubt you can challenge this. On one hand it is unfair for one person to pay a mortgage when 2 other people have a 50% share of the property. They should bear the brunt of the financial burden as they will ultimately benefit in equal shares. So you need to see the will and any trust set up.

But that person isn’t paying the mortgage because it will be paid by the rent. It’s actually possible that the rent is higher than the mortgage+cost so the wife is making a profit out of it.
You coud argue that it’s unfair the DH and his dbrother don’t benefit from it….

From what I’ve read about lifetime trusts the only person to benefit financially is the spouse who has the lifetime interest. Dh and his brother can’t receive any income from the rent of the tenants as the point is that the surviving spouse is not left destitute.

however we don’t know what the wording of the trust says as we haven’t seen the Will, we’ve asked and not been given one. Todays letter says that once probate has been granted a certified copy of the Will will be sent to dh and his brother.

But Can they query anything once it’s gone through probate?

Grant of probate amongst other things gives the executor the right to dispose of the estate in accordance with the will, rather than, of itself, endorsing the disposal of assets. They could send a copy of the will before but you'll get to read it. The executor doesn't have a free hand to go against the will and, if they do, there is recourse.

Good luck.

OP you say the property was owned as tenants in common. Do you know if it was a joint mortgage or just a mortgage in the wife’s name against her share of the property.

If FIL paid 50% of purchase price in cash and his wife used a mixture of cash and mortgage for her 50% then DH and his brother are not liable for the mortgage and are entitled to 50% of the sale price.

You should be able to get some details by getting a copy of the register which shows the charges. www.gov.uk/search-property-information-land-registry

But Can they query anything once it’s gone through probate?

I think you have 6 months from grant of probate date. Note: A property can’t be sold until probate is granted.

My understanding is legally beneficiaries are not entitled to see a will before probate is granted. However, you may potentially be able to apply to a court for a copy.

You can also lodge a caveat to stop probate being granted which you could leverage to get a copy of the will.

In both scenarios the first stop is to get legal advice and you will incur costs.

The mortgage is in joint names, they are both named on the title register. They bought the house over 20 years ago. Although a bank is named as having a charge against it from 2019 so I think they’ve remortgaged on it.

Would it be possible for dh & dbil to make her an offer to relinquish all claim on the property?

I'm asking this because a) it sounds like she's up for selling b) you wanting to know if she can sell up without consent suggests the sons would prefer to retain ownership & not cash out & b) no contact since dfil's death suggests things aren't on a friendly footing.

So if it's legally & financially feasible, just buying her out might save a lot of stress for everyone.

I would be looking very closely at the remortgage. Sorry for being blunt but was FIL able to sign e.g. did he have dementia?

You are seeing a solicitor on Monday, use the link I provided to get a copy of the register to take with you. I think it costs £3.

FIL didn’t have dementia, so I think the remortgaging would have been all above board. Their other property also has a charge on it for another company, done around the same time.

So both houses 25% or just one?

No, sadly dh and dbil would not be able to buy her out of the property as they don’t have the means to do that.

Also I’m pretty sure that they couldn’t even offer if they could afford it as they don’t actually own any of the property until she dies due to the lifetime interest.

I’m not asking because they would prefer the cash up front. I’m asking because she has cut off the entire family since his death. She won’t answer messages or phone calls and keeps changing solicitors. Things are not on a friendly footing and to be honest we don’t entirely trust her not to try and do them out of their inheritance if she can.

I’d have thought seeing as she only owns 50% of the property she wouldn’t be able to sell it without consulting them in some way. In the same way that FIL couldn’t leave the entire property to them as he only owned half.