Tenants in common ,probate needed on death of one?

[Witchgreen6]

My brother died three and half years ago.His wife survives him and continues to live in their home.
He had a joint bank account and some personal possessions .His will left his estate to his wife with his share in the property being put in property trust . His wife has a life interest and is one of 3 trustees to the trust .
There is a firm dealing with probate for my brother's estate.
They have a grant but advise that they are seeking information or guidance about an A3 restriction which appears on the LR entry dated a month before my brother's death

Trying to be helpful I phoned the land reg , explained the situation and they advised that the restriction could be removed by way of ST 5 and RX 3.I said nothing about my brother's will or Property Trust.
I conveyed this info to the firm dealing and they are now preparing the forms .
But I'm worried that this isn't the correct step , particularly since I think completing the forms will require confirming that my sil the sole surviving proprietor is also the sole beneficial owner.
Is that the case when there is a Property Trust,?
And if there's a trust with 3 trustees does the restriction need to be removed?
Can @LandRegRep1862 help?

[PickledPurplePickle]

Why is the solicitor not working out the correct paperwork that needs to be filed?

[Witchgreen6]

@PickledPurplePickle I suppose they largely have been .I was trying to be helpful and thought I'd run the suggestion past them and they agreed to it. Foolish probably , but it's been 3 years and I want it finished,

The firm dealing are 'estate adminstration experts' not solicitors. I assume they know their job but I'm not 100% confident.
They are working for a fixed fee. It wasn't me who engaged them. The grant is in their name so m it would be hassle to disengage from their services.

[Another2Cats]

Please do speak to an actual solicitor. The normal restriction where there are tenants in common reads:

"The restriction on the title is:no disposition by sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by the order of the court."

Is this the restriction you're trying to get rid off?

Basically, this stops SIL from selling off the home and pocketing the money by herself.

This restriction being lifted is normally done after the surviving spouse passes away. If SIL is still alive then I can't see why this is being done.

Please do speak to an actual solicitor about this.

[Witchgreen6]

Hi , thank you . Yes that is the restriction. There is a firm dealing with executing the will.
The firm said that they needed more information and clarification about the restriction before they could continue with the process.
Stupidly I phoned the land reg and then passed on the land reg advice - which was that in the event of death of one of the couple the restriction should be removed.
There firm dealing have considered this and now say that the restriction doesn't comply with the terms of the Will .
My brother's will sets up a property trust into which his share passes.
Obviously I understand very little . Maybe I shouldn't try .

[Witchgreen6]

I've spoken to the solicitors who prepared the will . They have the documentation regarding changes to the land registry entries and it seems that there is an error by the land registry.
He has passed all this on to the firm dealing with probate so that they can liaise with the land reg to sort it out.

[LandRegRep1862]

@Witchgreen6

My brother died three and half years ago.His wife survives him and continues to live in their home.
He had a joint bank account and some personal possessions .His will left his estate to his wife with his share in the property being put in property trust . His wife has a life interest and is one of 3 trustees to the trust .
There is a firm dealing with probate for my brother's estate.
They have a grant but advise that they are seeking information or guidance about an A3 restriction which appears on the LR entry dated a month before my brother's death

Trying to be helpful I phoned the land reg , explained the situation and they advised that the restriction could be removed by way of ST 5 and RX 3.I said nothing about my brother's will or Property Trust.
I conveyed this info to the firm dealing and they are now preparing the forms .
But I'm worried that this isn't the correct step , particularly since I think completing the forms will require confirming that my sil the sole surviving proprietor is also the sole beneficial owner.
Is that the case when there is a Property Trust,?
And if there's a trust with 3 trustees does the restriction need to be removed?
Can @LandRegRep1862 help?

Apologies for such a slow reply.
A form A/joint ownership restriction can often be applied for to protect a trust. If they were joint registered owners and she is now the sole legal and beneficial owner then it can be cancelled using forms RX3/ST5 as mentioned.
Probate isn’t needed re the property title
As it seems that she’s not the sole legal AND beneficial owner it can remain on the register. The title can be updated re the death only using form DJP plus death certificate/probate to confirm his death.
The will(s) and trust relate to the beneficial ownership so can be updated/amended as appropriate but don’t usually then lead to any update to the title/legal ownership which we register

[LandRegRep1862]

@Witchgreen6

Hi , thank you . Yes that is the restriction. There is a firm dealing with executing the will.
The firm said that they needed more information and clarification about the restriction before they could continue with the process.
Stupidly I phoned the land reg and then passed on the land reg advice - which was that in the event of death of one of the couple the restriction should be removed.
There firm dealing have considered this and now say that the restriction doesn't comply with the terms of the Will .
My brother's will sets up a property trust into which his share passes.
Obviously I understand very little . Maybe I shouldn't try .

Edited

The restriction can be removed, as explained. We wouldn’t/shouldn’t be advising on whether that’s the right thing to do.
It reads as if the form A restriction was registered to protect their wills/beneficial shares so quite correctly. But hopefully any query raised by the form will answer the concerns. If not and/or you remain unsure then feel free message the title number.
Important though to always note that we very rarely see, as we don’t need to, the wills or trust deeds etc.

[Witchgreen6]

Hello @LandRegRep1862 thank you for coming on.
It seems that what happened was that in the process of severing the joint tenancy and moving to TIC ( so that should one of them die their share of the property wouldn't automatically pass to the survivor but go through a will and be put in a trust) an error in the spelling of my brother's name was discovered.
Forms to confirm the spelling were unable to be completed before my poor brother died .
I'm not completely sure when the misspelling occurred , possibly when they first bought the property and it was registered .
I think, if it were a long standing uncorrected error then the result was that the property was registered with only one name and that meant they were not joint tenants and couldn't become TIC ?? Although the TIC restriction was recently added and appears on the LR entry.
I don't understand though why the property couldn't be registered with the title in two sightly different names
Jane Doe and John Does for example.
Perhaps the LR sought verification and it wasn't provided ?

I think the remedy now being applied is for the title to be registered in the names of the trustees of the property trust created by my brother's will.
Do you think I've got a correct grasp now ?

[Witchgreen6]

 If not and/or you remain unsure then feel free message the title number
I'm a bit slow this morning 🙂, do you mean I could message you the title number?

[LandRegRep1862]

@Witchgreen6

Hello @LandRegRep1862 thank you for coming on.
It seems that what happened was that in the process of severing the joint tenancy and moving to TIC ( so that should one of them die their share of the property wouldn't automatically pass to the survivor but go through a will and be put in a trust) an error in the spelling of my brother's name was discovered.
Forms to confirm the spelling were unable to be completed before my poor brother died .
I'm not completely sure when the misspelling occurred , possibly when they first bought the property and it was registered .
I think, if it were a long standing uncorrected error then the result was that the property was registered with only one name and that meant they were not joint tenants and couldn't become TIC ?? Although the TIC restriction was recently added and appears on the LR entry.
I don't understand though why the property couldn't be registered with the title in two sightly different names
Jane Doe and John Does for example.
Perhaps the LR sought verification and it wasn't provided ?

I think the remedy now being applied is for the title to be registered in the names of the trustees of the property trust created by my brother's will.
Do you think I've got a correct grasp now ?

Ok - so if a single owner was registered you can still have a form A restriction registered to protect such matters. It’s not solely linked to TIC.
I don’t quite follow the explanation so far or what’s happening next but if it’s being transferred into new names then presumably that’s what’s now wanted.
If you want to share the title number I’m happy to try to explain matters from the legal ownership/title angle at least

[Witchgreen6]

Thank you @LandRegRep1862 I'll pm you . That's interesting that there can be a form A restriction even with only one person registered as the owner ( proprietor ? correct term I think,)
The more I learn the more complex things seem to be and the less confident I am about ever understanding.

[LandRegRep1862]

@Witchgreen6

Thank you @LandRegRep1862 I'll pm you . That's interesting that there can be a form A restriction even with only one person registered as the owner ( proprietor ? correct term I think,)
The more I learn the more complex things seem to be and the less confident I am about ever understanding.

It is a very complex subject not least because the legal ownership, which we register, and beneficial ownership (wills, trusts, shares etc) are very distinct and separate. And the latter is not specifically included on the land register itself.

[LandRegRep1862]

Using PMd details - property owned in joint names from 80s.
Both names corrected in 2006 following remortgage application although looks like we made a typo re new middle name for each
2020 names corrected on application re form SEV which is an application to sever the joint tenancy (TIC to most people) and register what’s known as a form A restriction. That’s how things remain.
The SEV/form A was presumably applied for when the wills/trust you refer to were created. And it remains on the register after the the death to protect that trust/beneficial share
If the surviving owner is the sole legal and beneficial owner then she can apply to cancel the form A restriction using the forms RX3/ST5 you refer to. The ST5 sets out the facts as to how she’s now that sole legal and beneficial owner
However if that’s not the case, and the trust you mention still exists, then the register continues to do as required and the form A restriction is doing as required.

[Witchgreen6]

Thank you @LandRegRep1862 please do feel free to move on as I think I've taken up enough of your time , but
Why would the title be in one person's name if it were owned jointly?
A property trust has been created in my brother's will . I'm thinking that with the restriction then it's not necessary to change the proprietorship to add the trustees?

[LandRegRep1862]

@Witchgreen6

Thank you @LandRegRep1862 please do feel free to move on as I think I've taken up enough of your time , but
Why would the title be in one person's name if it were owned jointly?
A property trust has been created in my brother's will . I'm thinking that with the restriction then it's not necessary to change the proprietorship to add the trustees?

When an owner dies the register can and often is updated. The death is very sadly a fact after all.
You are correct re next steps but it’s crucial, or at least advisable in my experience, to ensure that everyone understands the legal position and what can happen next for example - we at HMLR aren’t involved in the what happens next discussion/process as our role is to register the outcome(s).
Some owners will transfer the legal ownership to the self and trustees whilst others may leave as is here as presumably everyone understands what’s happened, why and how the will/trust works