On inspecting the title deeds to a property following instructions to act for a client in obtaining an Equity Release over the property, it sometimes comes to light that the property is held in the name of the client and a deceased proprietor.
Where the client and the other party owned the property on a joint tenants basis, then the deceased joint tenants share passes automatically by survivorship to the surviving co-owner.
It is therefore possible to simply register the death of the deceased proprietor at the Land Registry by supplying them with a registrars certified copy of the death certificate and to request the removal of the name of the deceased proprietor.
However, the registered proprietors to the property may have held the property on a tenants in common basis. In this case, both of their names are registered on the title deeds, but a restriction is placed on title to confirm the existence of the beneficial interest in the property being held subject to an underlying trust.
On the death of one of the proprietors, where they hold the property on a tenants in common basis, their share passes in accordance with the terms of their Will or Intestacy, and may not necessarily pass to the other proprietor.
As the surviving proprietor, in order to obtain the Equity Release, over the property must be both the sole legal and beneficial owner; it is necessary to confirm their legal authority to deal with the deceased''s proprietors estate and their entitlement in the same.
This is done by requesting from the surviving proprietor a Grant of Probate (where the deceased left a Will) or Grant of Letters of Administration (where the deceased did not leave a Will).
The Grant confirms the person or persons who are legally appointed to deal with the estate and therefore who we can take instructions from regarding any dealings with the property. It also confirms the distribution of the estate.
Without a grant, if we were to take any action in connection with the removal of the deceased proprietor and restriction from the title we could be acting contrary to any Will which may not as of yet been proved, which would then be in conflict with our duty to the lender in acting with the Equity Release. There is also a risk where a grant has not been obtained that a Will, later Will, or other beneficiaries could come forward in the future.
If a client has not yet obtained a grant then our Trusts & Estates Team would be pleased to assist. We would supply the client with a probate fact find, but would in the first place need to receive the registrar''s copy of the death certificate and copy of the Will (together with details of where the original is held), or confirmation that there is no Will.
Dependent on the nature of the overall estate and the extent of our instructions, a costs estimate would then be provided to the client. However, our estimated charges to act on a client''s behalf in obtaining the grant are in the region of £1,000 plus VAT and disbursements of £165. These charges would remain payable by the client even if the Equity Release did not complete.