By Kathryn Caple
I have had a number of enquiries recently about transferring a property to an adult child after their parent has passed away. The caller always approaches this as though it is incredibly easy to do and will just be a quick transaction. In reality, it can be reasonably straightforward, but I need to unpack the enquiry a little to make sure I know exactly what is involved.
The most straightforward scenario would be one where there is a Will, naming a beneficiary for the property. The Executors will have already obtained Grant of Probate and all that we need to do is consider the title to the property. In our straightforward scenario, the property will already be registered at the Land Registry, will have been owned solely by the deceased and there will be no complications on the title or extra permissions or consents needed. If this is the case, all which needs to be done is to prepare an Assent, which is then lodged at the Land Registry together with Grant of Probate, so that they can update the title to show the new beneficiary as owner.
However, several of my recent conversations have been more along the lines of…
- Is there a Will? – no
- Has anyone obtained Grant of Letters of Administration? – no
This leads on to a number of areas which need to be considered:
Who is the actual beneficiary under the Intestacy Rules if there is no Will?
We have to establish which family members survived the deceased in order to determine who would actually be entitled to the property under the Intestacy Rules. In a couple of enquiries, the person I was speaking to told me they were one of several children. In one other particular enquiry the caller told me they were the deceased’s niece – he did have children, but they were estranged and he treated his niece as though she were his daughter. Which unfortunately is irrelevant so far as the Intestacy Rules are concerned – his children would be the primary beneficiaries.
If there is potentially more than one person entitled to the property, this complicates matters, and we would need to have a family tree properly investigated and prepared to ensure no one has been missed off. This is especially so if we are aware that the deceased was estranged from some family members.
Do the other beneficiaries agree to this person receiving the house?
The other question we would need to deal with is whether the other potential beneficiaries are happy for the person calling us to have the whole property out of the estate.
If they are, this can be documented using a Deed of Variation. This is a document which varies the original distribution of an estate (whether by a Will or under the Intestacy Rules). There are tax advantages to using this document, providing it is made within 2 years of the deceased’s death, but it also serves to put the agreement in writing and gives the other beneficiaries the opportunity to take independent legal advice so there is less chance of them trying to renege on the agreement later.
If the other beneficiaries are not in agreement, then this adds an additional layer of complication as to how we can resolve matters – could our client possibly buy out the other beneficiaries in order to keep the house? Or are they in a position where they need advice on a possible claim under the Inheritance (Provision for Family and Dependents) Act 1975?
Application for Grant of Letters of Administration
At some point during all of this, one of the potential beneficiaries (possibly our client if no claim is being made by them) will have to apply for Grant of Letters of Administration. Even if the estate has very little in it by way of cash or investments – or in some cases we are instructed years after the deceased passed away and all the accounts were closed some time ago – the Land Registry will always require sight of a Grant of Probate or Letters of Administration to deal with property after the death of the owner.
Investigate the property title – is it registered?
Even if we get past all this, we also have to consider the property itself – is it registered? If the property is not registered (and this is not uncommon where a couple bought their first house many years ago and have not moved since), then the act of transferring it to a beneficiary will trigger first registration which involves an additional application to the Land Registry and requires the original Deeds.
Even if the property is registered, sometimes there are restrictions on the register which might flag up other potential interests or require additional consents to the transfer.
It is clearly impossible to go through all this in detail over the phone, but we will highlight the key issues needing to be addressed, and also the likely costs. The level of costs can be surprising to a caller who believes they are just asking for a straightforward transfer, but there is often far more to be considered than might first appear.
If you need guidance in respect of your Will, please contact Kathryn Caple, Partner and Head of Wills and Probate at Else Solicitors on 01283 526200 or kathryn.caple@elselaw.co.uk.