property/inheritance law

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property/inheritance law

Postby stephenharris1 » Sat Feb 19, 2011 5:44 pm

Hi. I am hoping someone can reply with an opinion on a matter of property/inheritance law.

My father died recently, but he was estranged from his second wife at the time. Before he died, he changed the property ownership to tenants in common using a solicitor. The required documents were prepared and sent by the solicitor (Notice of Severance) but at the time, his wife was in hospital also quite ill. I assume that she received the Notice of Severance documents but have no way of knowing when.

I do know that the final letter arrived from the Land Registry some time later, after she was out of hospital, as I saw the letter and passed it to her personally (unopened) and I also know that the deeds do in fact show the house as now being owned as tenants in common.

Even if she had received the Notice of Severance, I doubt whether she would have signed it, knowing he was dying, so how did the process conclude, and the property change to tenants in common? Is serving the notice enough, without proving it was received or was signed and returned? Can she get ownership reverted to joint tenancy by claiming she didnt see the paperwork?

FYI - House value is 400,000, and she now lives there alone (4 bed detached, big gardens) so it is unsuitable. Half the value would buy her a nice 2 bed retirement apartment nearby which would be more suitable anyway.

Thanks for any opinions!
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Re: property/inheritance law

Postby despair » Sun Feb 20, 2011 11:36 am

As i understand it with Tenants in Common each party owns a particular share

hence when one party dies their share has to be passed to their surviving heir

Did your father write a will

Who did he leave his share to?

If you are the sole heir then you could file a Partition claim and either the property would have to be sold and the proceeds split or she or you could buy each other out

The fact the deeds show tenants in common should mean its absolute title

Conveyancer or Mark Hessel can help you furthur
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Re: property/inheritance law

Postby Mojisola » Sun Feb 20, 2011 12:11 pm

To the best of my understanding, once the notice is served, the tenancy is severed. Although it's good practice to get a signed acknowledgement from the other party, it isn't essential for the severance.
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Re: property/inheritance law

Postby Conveyancer » Sun Feb 20, 2011 12:47 pm

Mojisola wrote:To the best of my understanding, once the notice is served, the tenancy is severed. Although it's good practice to get a signed acknowledgement from the other party, it isn't essential for the severance.


Agreed. It is important to distinguish between service of a notice and actual receipt of a notice. Whilst any method of service will hopefully lead to the recipient getting the notice, receipt is not essential. The law apportions the risk to the recipient, not the sender.

There was actually a case on severance which emphasises this. A notice of severance was served on a husband by or on behalf of the wife. The husband died very shortly afterwards. The wife went to the house and collected the unopened letter containing the notice. It was held that the notice had been served and the tenancy severed accordingly.
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Re: property/inheritance law

Postby Mark Hessel » Mon Feb 21, 2011 3:10 pm

Generally the notice acts automatically, albeit proving service could be a sticking point if she denies that (your word against hers that you handed it to her).

The estranged part seems to indicate they were still married so I am not sure what severance achieves here. Whether your father had a will could be another factor, plus when that will was made. If he had a will but that was before his second marriage then he has no valid will (marriage and divorce both serve to invalidate any pre-existing will).

If your father had made a will (which if he was severing he should have considered doing at the same time), then his will directs where his share goes. However his now widow can still claim under the Inheritance (Provision for Family and Dependants) Act 1975.

Whilst at face value 4 beds is more than she needs, getting her out won't necessarily be that easy. If she is elderly, or acts elderly, then you (other family members) will look like the baddies in court trying to kick her out; you will need a compelling argument that her needs can be met in alternative accommodation. Plus whilst 2 beds may be enough, her financial need sin the future could dictate she still gets the rest, i.e. to pay her way for the future.

Now is the time to talk to her and try and agree an amicable accord. Whatever your father's reasons to sever, and whether or not their relationship had cooled, she may still be feeling the pain acutely and so may respond better to an olive branch than a stick to beat her with.
The thoughts and opinions expressed here are not legal advice specific to your case.
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Re: property/inheritance law

Postby gardenlaw » Wed Feb 23, 2011 9:54 am

As Mark says the key to your situation is the Will of your father, and as good relations as possible with the wife. She may have known of the reasons for the severance. It is perfectly reasonable to want to protect your own children's inheritance and she may have done the same if she has family. If there is a Will it often says the wife can live in the house as long as she needs to or gives her the right to ask for a replacement smaller property to be bought on the same terms.
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Re: property/inheritance law

Postby johnwilliam23 » Thu Dec 22, 2011 8:18 am

I think you should take advice from any property lawyer.
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Re: property/inheritance law

Postby professional20 » Thu Jul 12, 2012 8:31 am

There are three ways in which you might inherit a property (or part of one)
if the property was held under 'joint tenancy', the surviving owner inherits automatically - it's not subject to the will or law of intestacy
if the property was owned outright by the deceased, or jointly by owners who have both died, the terms of their will(s) determine who inherits; if there is no will it is subject to the laws of intestacy
if the property was owned as a 'tenancy in common', the deceased's will or the law of intestacy (if there's no will) determines who inherits the deceased person's share
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Re: property/inheritance law

Postby helpthedonkeysabroad » Sun Nov 02, 2014 8:15 pm

Hello,

Please can y ou tell me the rule------If I own a property outright, and Registered in my name only, after the death of my husband, then add my daughters name on the title regsiter, to save her the problems if I died----I was rather ill and liable to a sudden death, plus She and my son were to inherit a large amount anyway when I died and they are both familiar and were with me when my will was written---------- and by putting her name on it was only to be used after I died and not for any other use or for collateral egtc and that promise given willingly, and also on the promise that she would help with the upkeep and cost of staying in a very large property and also promise to make sure I don't get put in a home etc., does this mean as she is thinking!!! that I gave her half my only home in fact, which I didn't and she knew that and laughed at the thought------when nothing was put in writing and she did not declare to the Tax man or benefits people, but had not given me any money at all for anything her whole life living with me, and really spoilt? She now has a partner and changed, using the house as hers and her friends and there is nothing I can do? I would have thought that there had to be something on paper if you inherited property worth about a million total? Or can she say she expected it as a right? NB I did not need any care at all just dropped off at the doctors or dentist sometimes, they were not very nice to me, abrupt and never talked but kept themselves together using the whole house.
I had been extremely nice and generous to both of them and her partner h ad lived here fofr 9 years also completely free? DUPED!!!!
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Re: property/inheritance law

Postby ukmicky » Sun Nov 23, 2014 3:30 pm

helpthedonkeysabroad

I have copied this from a website linked below

If you're thinking about transferring a house to children you should read the following article. Here at Inheritance Solutions UK we are often contacted by families who are thinking of transferring their house to their children. In order for us to advise you properly it is important for us to understand why you want to do this, and look at some of the key areas in which we may be able to assist you.

First it is important that you understand the risks of transferring property into a child’s name.

The first risk is loss of control: If you transfer your property into your child’s name then you will no longer be the legal owner of the property. Therefore, if you decide that you wish to sell your property you first have to have the agreement of the new owner in order to do so. Additionally, if they wish to sell the property, they will be able to do so without your permission.

The second risk is outside parties: You must also consider the possibility that your child may have an issue of their own, for example divorce. Your son or daughter’s soon to be ex spouse would have a legitimate claim against their estate which would also include your property. If your son or daughter had an issue with bankruptcy the property would also form part of the estate. This would potentially be claimed by any creditors seeking to realise money from their estate in order to repay monies owed to them.

The third risk is capital gains tax: This is more of an issue for your children than you but it is an issue nevertheless. Capital gains tax is charged when an asset that is classed as an investment goes up in value. If your children are not living in your property when you transfer it into their names it will be subject to capital gains tax when they come to sell it. This means that if the property increases in value after being transferred over to your children, they may then be liable to pay tax on it.

The fourth issue is avoiding residential care fees: The most common reason that clients have of wanting to transfer property to their children is to avoid having to sell their home to pay for care fees. Transferring property to your children like this does NOT protect your home. Often this is classed as a gift with reservation. This is where you have made a gift but have reserved all the rights over it and so if care needs were to a rise this gift would be seen as an attempt to avoid paying for care. Therefore the property would be considered as part of your estate and used to fund your care fees.
Are you saying her name is now on the title register ? If so you have given away some ownership rights to your house.


http://www.inheritancesolutions.co.uk/a ... ldren.html

What is on the register ,are you now joint tenants or tenants in common ? .

She should be revealing any gift to the tax man. Everything over £325,000 is taxed at 40 % so she may now have a big tax debt on the remaining £175000 of her half share of a 1 million pound house and if you were to pass away (hopefully not ) as she has already had the £325.000 tax free allowance she will have to pay 40% on the remaining half a million value if it goes to her .

Don't take the next question the wrong way :)

When you put her name on the title you say you were ill. Were you mentally fit at time and did a solicitor act for you .

If you were not mentally fit due to the illness you have a very good case for getting the register rectified and her name removed.

I feel you should quietly go see a solicitor for some proper advice.
Advice given is not legally qualified and you are advised to gain a professional opinion
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