Help please! Inheritance question. I think I've been stupid.

[TemporaryNaming]

Hello,

I think I have been very stupid, I was the executor of my mother's will who died very suddenly and fairly young at 52. This was 3 years ago. The will was very clear & however the solicitors were a nightmare. They would regularly not respond and I ended up having to deal with all of her financial matters myself as nobody responded to me for over 4months and her employer was looking to release her final salary etc. Extremely stressful. Myself and 2 siblings inherited her home and my sibling still lives there, I had asked the solicitor at the time if we needed to transfer the property over and he said no, unless we were planning to sell. So we have just left it. But the land registry still has it in my mother's name who is deceased. Do I need to change this over? If so is it a fairly easy process? I'm in Scotland and I know it's different here. I am scared to deal with solicitors again as the whole process was so awful. Thank you to anyone who can help!

The house should be in all 3 names . I don't know Scottish law , but here once probate is issued and you have the probate you can contact land registry to get it changed.

Thanks @MayBeee probate was granted over 2 years ago. My sibling pays home insurance, council tax etc so all fine there but I believe in Scotland we need to use a solicitor to transfer the property over to us. I will look further into this today. Its frustrating as I did ask the solicitor about this at the time but they were useless & no help. Thank you for your reply.

You can change solicitors. You don’t have to stick with rubbish ones. You might get some good recommendations here, or from friends?

I don't think you'll need a solicitor (I am a solicitor but in England not Scotland so I'm making an assumption the Land Registry requirements are similar.) You just need to complete the LR standard form (TR1) and submit it with a copy of the will and copy of probate as evidence of how/why the title is passing and who to. You can just leave it as it is (the three of you are beneficial owners anyway) but you'd have to faff around sorting it before selling or any other form of transaction. The fact that one sibling lives there and pays the bills and running costs isn't really relevant- that's something for the siblings to agree. The only problem it may cause is if the other two want to sell and resident sibling doesn't but even then you can apply to court for an order for sale.

@honeylulu thank you this has actually been so helpful! I'm happy to leave it for now if that's fine legally as sibling has no plans to leave any time soon. I did have a look on land registry scotland and they do say you need a solicitor as its a complex legal process but that's maybe more to do with probate. Thanks so much!

I just had a look at Registries of Scotland and it does recommend using a solicitor though it's not compulsory. I think this is because a deed (disposition) is required and I'm not sure how complicated that is (the TR1 in England is really simple so maybe we are a bit spoilt). Anyway have a look at the website and find out a bit more what is involved. If you do decide to use a solicitor you don't have to use the same one. See if you can find one who specialises in conveyances and can do the disposition for a fixed fee. Good luck!

Yolur solicitor sounds awful; don't use them again. If you pm me I will send you the name of mine (in Scotland) , who has been faultless in all our dealings. (Hope this doesn't breach MN).

There is no such thing as Probate in Scotland.

it is Confirmation

you do not have to register this change - you can wait until the property is sold and submit the confirmation and death certificate then as part of the prescriptive progress of title.

if you wish your sibling to take title, this will require a Disposition by the Executors to them.

registers of Scotland will always advise you use a lawyer as they cannot give legal advice, they can only advise on registration

If you have a complaint about your solicitor, contact the Law Society of Scotland

I cannot see why you would not want completion of title. This is not a DIY task in Scotland, you will need a conveyancing solicitor to do so and you will need to produce the Certificate of Confirmation (among other things).

If you go ahead you will want to determine whether you want ownership with a survivorship destination or otherwise (competent solicitor can explain).

There are negatives to joint ownership. It can be an asset for bankruptcy or divorce of any of the joint owners. Relationships can change. Those owners not resident may incur capital gains tax liability on eventual sale.

What's going to happen? Are you going to ask your sibling to move out so you can sell? Are they going to pay you rent for your share of the house?

Hello, thank you for all these replies. Very helpful! Yes it is confirmation in Scotland however I thought for the purposes of the thread I would use probate to keep it simple. No immediate plans to sell, sibling was still living at home with our mum so naturally stayed in the house & will for a few years yet which is a mutual agreement between all of us. My mum has been gone for almost 3 years and there hasn't been any problems thus far so hoping to keep it that way! They don't pay rent. If we can keep things are they are just now that's fine, I was panicking that I hadn't done it properly and needed to fix it today but it sounds like it will be fine to leave alone for now. @TrashyPanda I actually was going to complain about the solicitor- not him personally but the whole company was a disgrace & I would never use them again - we only went with them as they had the original will and thought it would be easier- ha! But I just didn't have the headspace at the time and it wouldn't change things now so there's no point.

I get what you mean - but it could be that you were overcharged because of their incompetence. And other vulnerable people could be at risk.

the Scottish Solicitors Disciplinary Tribunal exists to deal with these issues, should you wish to report them. You can look up cases online to get an idea of similar cases.

It would be foolish not to make up the title.

If you do nothing to transfer the property, then the title would remain stuck in your mother’s executry. You could be unable to resolve this in the future due to incapacity or death. This might then be treated as a lapsed trust. Someone else might have to be appointed executor ad non executa to your mother’s estate to complete administration of the estate, or in the case of death, your own executor might be tasked with dealing with this.

Here is a quote from a reputable Scottish conveyancing handbook in respect of executor responsibility where an inherited house is not being sold “ … and in our view title should always be completed immediately”.

The registered title would remain in her mothers name, not “stuck in her executory”.

as long as all the relevant documentation is there, it is not uncommon for RoS to receive applications with several links in title submitted as part of the prescriptive progress. Including executor ad non executa. There is no issue with processing such applications.

conveyancing handbooks are primarily written for solicitors (although they are also used at RoS!) and will always advise the prudent approach. It’s undoubtedly best practice, but there is no rush to transfer title, especially if the title is registered, which appears to be the case in this instance.

so there is a choice - arrange for a disposition in favour of the beneficiaries to be drawn up and submitted for registration. And then when one sibling takes individual title/the house is sold, have another disposition in their favour and register that too. Or you can just wait for the latter event to take place and register a single disposition, which will save you legal fees and registration fees.

“ then the title would remain stuck in your mother’s executry.”

Sorry if I got this wrong but I was merely borrowing the description used by two Law Professors to describe such a situation.

Profs Gretton and Reid?
even the best can use unfortunate phraseology.

In the given situation, the title is registered in her mothers name. It isn’t stuck anywhere, as the executors could sign a disposition today and transfer the title as they have all the necessary links in title.