Inheritance of 50% of a property questions

[sunglasses]

My DH and brother were left their dads 50% share of the house in his will. His wife , their mum, still lives in the house. They had changed the ownership of the house to a ‘tenancy in common’ or severed tenancy in the 90’s to ensure their sons would inherit half the house in the case of either of them remarrying. It’s not clear whether they arranged for the surviving spouse to have a lifetime interest in the property and a solicitor has advised my DH’s mum to contest the will and try and put the property back in her name. Luckily there is no desire from any of the parties to do this. The solicitor said he is worried for my MIL in case either of the sons wants to force a sale and she is kicked out. (They don’t) He has advised as a second suggestion to make sure the house is registered as 50% ownership by her and 25% for each son. When drawing up this agreement will this include a provision for her to have a lifetime interest? Can they set this up now as this would set her mind at rest that she can’t be forced to sell. Is there anything else to consider before signing anything?

My parents changed their house ownership to Tenants in Common, each with a 50% share. This was instigated by my DF for his own reasons (long story I can't go into). DF's Will stated that DM had the right to live in the property until death. DF passed away nearly 30 years ago and DM continued to live in the house and fund bills, maintenance, etc, until she passed away in November 2022. I am Executor and DM's share is left to me. DF's was left to a so called "friend," who we have had no contact with since his funeral.

I would suggest you have some sort of formal/legal agreement set-up to protect the interests of all parties. It may be helpful to find out, if possible, MIL's intentions with regard to her share and what happens if care fees are needed in future.

You really need to read the will. Did he pass away recently or is this a historical thing that has just come to light?

If it was recently then you need to speak to one of the executors and find out exactly what was written in the will.

If it's a historic thing then you can get a copy of the will from the government website and it costs £1.50:-

https://www.gov.uk/search-will-probate

What you need to look for is anything in the will that says something like "Life Interest in [address of dad's house]"

This will have a lot written about Trusts. It should say something like "the Life Tenant shall mean my wife [mum's name]"

and then later on something like "the Property Trustees shall permit the Life Tenant to occupy or use rent free any property or assets which ... are comprised in the Trust Fund..."

If this is the case then mum is a Life Tenant and she cannot be removed from the house while she still lives.

If this doesn't exist in the will then the only way for the sons to sell the house when their mum doesn't want it sold would be to go to court. If mum objects to the sale then the sons can't just go ahead anyway they would have to get a court order forcing the sale.

"He has advised as a second suggestion to make sure the house is registered as 50% ownership by her and 25% for each son."

She is already registered as a 50% owner. If you have a look at the Title Register on the government website (it costs £3):-

https://www.gov.uk/search-property-information-land-registry

It will show that they are both registered owners. There will then be a restriction that says:

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.

The other 50% is owned jointly by the sons already (or will be in the future if you don't have probate yet).

If you want to update the land registry records to show that the sons jointly own the property then that is a simple thing to do. But it would not, of itself, give mum any more rights than she already has.

If she is not already a Life Tenant under dad's will then you would need to draw up a secured or assured(non-shorthold) tenancy agreement.

Thanks for replying. My husband dealt with his Dads will. He died Dec2022 and the Will went through probate. I don’t know what the Will said about the arrangements for his wife( husbands mum) but she got a solicitor to help her write her will recently and he seems to have put a real spanner in the works telling her he ‘can’t believe her husband made no provision for her, severing the will was an ill advised thing to do, she should challenge it and get the house completely in her name’ etc. At that point the solicitor hadn’t seen a copy of her husbands will and she actually told the solicitor her husband hadn’t made one!!! We don’t know why she said this and perhaps she was confused. He now knows there was one and it went through probate but he is now charging her to register the house in the 3 names. It seems this might be unnecessary as the Will states clearly that his half of the house has been left to the two sons and she retains her half. In terms of selling , the sons have no desire to do this but the solicitor has stoked up fear by suggesting they could force a sale if they wanted to release funds. Good to know this is not as easy as that and will hopefully set her mind at rest.

@sunglasses Just a few thoughts. You said:

"... [the solicitor] ‘can’t believe her husband made no provision for her, severing the will was an ill advised thing to do, she should challenge it and get the house completely in her name’ etc. At that point the solicitor hadn’t seen a copy of her husbands will"

OK this is all very confusing. The solicitor said this WITHOUT seeing the will?

Where you say "severing the will" (the phrase is "severing the tenancy") that is certainly not an "ill advised" thing to do at all. "Severing the tenancy" just means changing from joint tenants to tenants in common (you "sever" the joint tenancy and replace it with a tenancy in common).

This is quite commonly done in the case of blended families or concerns that the surviving spouse may remarry and not leave anything to the existing children. It is also common where a couple is concerned about care home fees (if one of them were to end up in a care home) wiping out the entire inheritance for their children.

"...‘can’t believe her husband made no provision for her..."

This would happen where mum had NOT been made a life tenant of the property. Although how the solicitor would know this without actually seeing the will, I have no idea.

This is why I said that you really do need to read the will and see what it actually says. If his mum was made a life tenant then that means exactly what it says and (except for some very unusual situations) she cannot be made to leave the property.

However, if "...her husband made no provision for her..." that would imply that she was NOT made a life tenant. But how the solicitor knew that without seeing the will I don't know.

In that situation then the sons could only remove mum from the house if they get a court order to sell the house.

"...he is now charging her to register the house in the 3 names. It seems this might be unnecessary as the Will states clearly that his half of the house has been left to the two sons and she retains her half..."

You are correct. Doing this will not give his mum any extra protection beyond what she already has.

"...he is now charging her to register the house in the 3 names."

That really does sound a bit dodgy. There's no need to do that, but if you really did want to do this then you can just fill in the Land Registry forms yourself.

If his mum really is worried that her sons might chuck her out of her home because the will does not say that she is a life tenant then the other thing to do would be for the sons to offer her a life tenancy of their share of the house.

This is known as a secured tenancy, and is a life tenancy (like the old council house tenancies). This is straight forward to set up but it would be best to get a solicitor to advise (although maybe not the one that seems to be frightening his mum!). Perhaps go to a different solicitor if you really want to go this route.

@sunglasses Depending on what the will says because your FIL died in Dec 2022 your DH and his brother are in time to do a deed of variation to gift their Mum a lifetime interest in the property. This would rectify the omission.

This would mean your MIL owns the property but your DH and his brother have their interest recorded on the Land Register.

The benefits of this are that your DH and brother don’t own a second property where CGT could be an issue when they come to sell it.

I have to say the solicitor seems very keen to generate income without assessing the actual legal position. I would consider consulting another solicitor for a second opinion. Although as @Another2Cats says it is possible to do the Deed of Variation and Land Registry restriction yourselves.

That’s amazing advice. Thanks so much for sharing all that and good to know the deed of variation could be set up now.

Who actually went to the solicitor with your MIL? Because it sounds all sorts of confused to me.
If the house was held as TIC and your FILs half was inherited by his sons, leaving his wife living in the house until she dies, then your DH and his brother will not be able to sell it. They have a legal interest, but your MIL is the beneficial owner.

My MIL went to a solicitor to write her own will. She had him come to get house in fact as she is housebound. My DH wasn’t there at his first visit during which my MIL told him about the TIC but that her husband hadn’t made a will. The solicitor then assumed husband had left his 50% interest to her but without a will this was not clear. Once my DH found this out he reminded her that her husband had left a Will leaving his 50% to his sons. ( This wax exactly why they had done the TIC in the first place and presumably if she had died first her 50% would have gone to sobs too- this is why we were puzzled ad to what she had told the solicitor) Once my DH was involved the solicitor agreed in a second visit and at this point knowing about the Will told my MIL she should challenge it etc.

But surely the TIC set up if done ages ago is rhe better set up for MIL anyway in terms of if she ever needs to go into a care home. If half the house had already been transferred to FIL long enough ago and now belongs to sons it won't be deprivation of assets and that share can't be used for care home fees. Especially if she is housebound and needs rhe solicitor to visit her, as it sounds like she may need to have care at some stage.

Are you sure it is a solicitor and not a will writing service? They don't seem very professional and seem to be throwing out random snippets of advice without taking full instructions.

Mmmm I’m not sure where she found him- perhaps he is a Will writing person rather than a solicitor. He is certainly complicating something that seemed pretty straightforward.