Sale by surviving legal owner's Executors and Trustees

Mr A and Mrs B owned their house as Tenants in Common with a Form A Restriction registered against the Title. They had Wills which left the survivor of them with a life interest in the half share in the house of the first of them to die. Mr A died laving Mrs B with a life interest in his half of the house. No Grant of Probate was extracted in Mr A’s estate. Mrs B has now died and a Grant of Probate has been extracted in his estate by his two Executors. The house is being sold and the purchasers solicitor is insisting on a Grant of Probate being Extracted in Mr A’s estate. Is this necessary?

My understanding is that on the death of Mr A the legal Title vests in Mrs B. She would have been able to sell the house by appointing a second Trustee. On her death can Mrs B’s two Executors / Trustees not sell the house - if necessary by them appointing another Trustee?

Gary Taylor
Progressive Wills Ltd

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I believe you are correct, Mrs A’s Executors become the trustees, and they can sell.
And if they are two in number, that is sufficient to satisfy the Form A restriction.

Even if there was only one Executor for Mrs A, that executor could technically appoint a co-trustee of his or her choosing, not connected with Mr A’s estate. Obviously the whoever they are, they have a legal obligation to carry out the terms of the trust in Mr A’s will (remainder).

Kamlesh Samji
KRS Estate Planning

You are right. The purchaser’s solicitor is wrong and it’s an annoyingly common misunderstanding.

Lorna Sansom
Blandy & Blandy LLP

Agreed. I would have thought that the buyer would overreach the beneficial interests under LPA '25 s.2.
I would put the onus on the buyer to explain why s.2 does not apply / protect the buyer.

Andrew Goodman
Osborne Clarke LLP

A grant of probate is not required to sell the house, but the sale should be by two trustees. Mrs B’s executors are entitled to make the sale as PRs of the sole surviving trustee of the land. They will hold half of the sale proceeds for the estate of A (which has not been properly administered).

Paul Davies
Clarke Willmott LLP

This is not a unique view by conveyancers. At least they are not (yet?) insisting that the executors of Mr A are also party to both the contract and the transfer of title. I recall several years ago that such a position had been promoted by the help line at HM Land Registry.

However, whilst I believe it is correct that a grant should be obtained for Mr A’s estate (for the reason stated below), the only reason I can see for the purchasers’ solicitors to require this is done is to protect themselves against a claim from the beneficiaries of Mr A’s estate.

Unless a grant is obtained in Mr A’s estate, how do the conveyancers acting in the sale know who has the legal right to receive the proceeds of his share of the property? If they account to the wrong party, they will be liable to the rightful recipient. They should not account to the executors of Mrs B, as they have no right to the assets of his estate (the chain of representation cannot be argued as there is no grant to his estate).

Mindful of the outcome of recent cases where solicitors have been innocently caught up in fraudulent property sales, the purchasers’ solicitors may be concerned that an element of liability could fall upon them if the proceeds do not reach the persons legally entitled to them.

I suggest the correct legal position be put to the purchasers’ solicitors and they be asked why they are “requiring” that a grant be taken in Mr A’s estate.

Paul Saunders

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Dear Gary
Presumably the Executors of Mrs B know the identity of the Executor of Mr A’s Will. I would consider appointing the Executor of Mr A’s will as co-trustee of the beneficial interests with the Executors of Mrs B’s estate. There should not be a need to obtain a grant of probate to the estate of Mr A for the sale of the property but all 3 trustees will become liable for the distribution of the net sale proceeds between the estates of Mr A and Mr B to their respective beneficiaries in accordance with their Wills.

Regards,

Carol Gregorious
Hyland Fitzwater Solicitors

Apologies - there was a typing error previously - it should read:-
Mr A and Mrs B owned their house as Tenants in Common with a Form A Restriction registered against the Title. They had Wills which left the survivor of them with a life interest in the half share in the house of the first of them to die. Mr A died leaving Mrs B with a life interest in his half of the house. No Grant of Probate was extracted in Mr A’s estate. Mrs B has now died and a Grant of Probate has been extracted in her estate by her two Executors. The house is being sold and the purchasers solicitor is insisting on a Grant of Probate being Extracted in Mr A’s estate. Is this necessary?

My understanding is that on the death of Mr A the legal Title vests in Mrs B. She would have been able to sell the house by appointing a second Trustee. On her death can Mrs B’s two Executors / Trustees not sell the house - if necessary by them appointing another Trustee?
Gary Taylor
Progressive Wills Ltd

i’d have thought that Mrs B’s executors need to appoint two persons to act as trustees of the land. If the purchaser is being difficult, then those two new trustees should apply to become registered proprietors. i cannot see that a grant of probate is necessary in A’s estate, or would even help with the transfer of the registered title.

Thomas Dumont
Radcliffe Chambers

You are right. The PR’s of the sole surviving trustee of land have the power to sell. There have to be two trustees to overreach the beneficial interest protected by the TIC restriction.

Jenny Walker
Driver Belcher Solicitors

Without probate having been obtained in respect of Mr A’s Will, how can Mrs B’s executors be protected against the possibility of a later Will being found with different executors and beneficiaries? If professional executors were involved, I am sure they would obtain probate.

Patrick Moroney

I would not be comfortable paying sale proceeds to trustees when I am aware there is an interest from another estate. I would not want to test that on the firms insurance in the event of a claim.

I am quite surprised that so many here are advocating circumventing getting a Grant - while it may not be strictly necessary does it not provide security as to where the half share of the sale funds ought to be going?

Gemma Van Duke
Bishopsgate Law

I would be interested to know how practitioners are advising their conveyancing colleagues to deal with the proceeds of sale in this type of scenario .

If 2 trustees are appointed , are conveyancers protected if they pay out by cheque or to a joint bank account in the name of the 2 trustees or , as is likely, if there is no joint account to an account in one of their names on their joint instruction?

Or are they asking questions about the estate of each of the deceased owners and insisting on seeing a Grant of probate for each will?

Is the only safe way to insist on a Grant of Probate for each estate and for the PRs to open an executors’ bank accounts and pay 50% of the proceeds into each account ?

Presumably the trustees of the first will trust have to complete a tax return and claim PPR exemption before they can pay out the beneficiaries?

I am sure this scenario will become much more common given the popularity of this type of will.

Katharine Storey
Disken & Co.

Thank you for all postings.

The position appears to be:-

  1. Strictly from a conveyancing point of view there is nothing preventing Mrs B’s 2 executors/trustees selling the property

  2. However, the Purchaser’s Solicitor is correct in insisting on a Grant being extracted in Mr A’s estate so that Mr A’s executors/trustees can be a party to the sale affording the protection that the sale proceeds have been distributed correctly.

Gary Taylor
Progressive Wills Ltd

I agree with Paul’s analysis but I often come across this scenario when on death of Mr A, no grant is taken out and Mrs B appoints new Trustees of the legal estate at that point (usually the Trustees of Mr A). On Mrs B’s death trustees are already in place and from a conveyancing perspective, potentially no need to obtain a grant of Probate.

As a Private Client lawyer this just seems wrong and I often find myself trying to convince Executors of the need to take out a Grant for the reasons Paul states.

Justin Wallace
Brewer Harding & Rowe

Can the executors of Mrs A sell the property in that capacity?

As executors of the last surviving trustee they can only do what the deceased could do, until the appointment of new trustees (s.18(2) Trustee Act 1925). Accordingly, if the deceased on their own could not have given a valid receipt for capital monies, how can their executors do so (applying s.18(3) TA 1925)? However, if the executors appoint themselves as trustees before the sale completes, there will then be 2 trustees.

I understand HM Land Registry might not take the point. If that is the case, then there is a risk that anyone buying former joint property from the personal representatives of the last surviving trustee might find their title impugned.

Paul Saunders

I view things differently to Gary. To me the position appears to be:

i) some solicitors think you don’t need the grant; and
ii) others think that you do.

(Perhaps you could say it is a private client/conveyancing solicitor debate.)

If we begin to lean to a position where the purchaser’s solicitor is ‘correct’ in insisting on a grant, then surely you need a grant.

What to do now. Go to Counsel? Counsel have already stated their position in this thread and for what it is worth I concur with that. However, I think it is important that we resist the temptation to obtain a grant because the purchaser insists on it. Some official land registry/STEP guidance would be welcome. (I do appreciate that there are risks involved in not obtaining the grant but that is a matter for the seller not the purchaser.)

Haroon Rashid
I Will Solicitors Ltd