H and W own property as tenants in common. H dies leaving his entire estate to his 2 sons. W has lost mental capacity and is in a care home. The 2 sons would like to sell the family home.
I assume we would have to do the following:
Obtain grant to H estate
Apply - COP for W so the 2 sons can be named as deputies and within the application request permission for property to be sold.
Would another trustee need to be appointed to deal with the sale? I assumed by having the 2 sons as deputies that would satisfy the requirement? If not, presumably it would have to be an independent trustee? Would this form part of the same COP application or be a separate application altogether?
Any help or advice would be very much appreciated. Thank you.
You do not require a grant to deal with H proportion of the property as the Legal Title devolves to the surviving legal owner which will be the wife. The beneficial interest is dealt with under Hs estate.
If W has no LPA COP application may be required but to sell the property and effect overreaching the sons should be able to act as the two trustees. However, if not another third party can be appointed they do not have to be connected to the transaction but must effect overreaching and give a valid receipt of sale proceeds. The distributions will have to be dealt with in accordance with the deceased and W respective shares and their Will.
As for COP process i await a further response from another party as to if and how the application is actioned.
I should have probably added that the leasehold title is held by H and W as tenants in common but shortly after W lost capacity, H bought the freehold which is in his sole name. He was not represented by a Solicitor.
As freehold is in his sole name I had assumed a grant to his estate was required but would welcome any thoughts.
I would get the probate yes. There are circumstances in which a solicitor can change the register without one, but the liability and risk for you and your firm increases, so it is definitely good practice to get a grant of probate.
You can make the COP application using forms COP1 COP1A COP3 and COP4 (one COP4 for each son). You should also be completing COP1D if you want to be appointed trustees of the jointly owned property. In the section asking you what order you want to make, I would suggest that you specifically ask for an order for sale of the property to be on the safe side.
I had this scenario - my clients (the children) were executors for the husband/father and deputies for the wife/mother and we had to apply to the Court of Protection for an order for sale and of course the children were also the ultimate beneficiaries of the trust and estates. The Court ordered that a third trustee be appointed - we chose the son-in-law. I know the Court did quote a section of the Trustee Act as the reason as they said the children had too many roles and you needed a third person for overreaching purposes in this sort of scenario.
Without retrieving my file from storage I can’t tell you the exact section but once you apply for the order for sale the Court will guide you through the procedure and tell you if you need to appoint a third person to enable the sale to take place.