Husband and Wife own property as tenants in common. H’s will provides for his beneficial interest to pass under a life interest trust for W until such time she dies or sells, it then forms part of his residuary estate which all passes to W. W wants to sell the property, presumably the sale means the trust comes to an end and the sale proceeds all pass to W. Is a grant of probate therefore not needed for H’s estate and W can sell as long as she appoints a second trustee for the sale? If W dies before the sale i assume the trust also ends in this event and H’s half share of the house passes to W under the terms of his will and again no grant would be required for H’s estate?
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Assuming H has died - a Grant won’t be needed, just a 2nd trustee.
However, from your wording, it appears that there is a life interest and residue over the same asset to the wife? If that is the case (unusual and probably unintended) then the property is, in effect, the wife’s.
Whether she can sell or not depends on the wording of the Will, but if the above is the case, then there is no trust and the Form A restriction can be removed with an RX3 (or RX4 I forget) and a statement from W to the Land registry.
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Usually, where a tenant in common leaves a life interest in the property to the surviving co-owner (whether spouse, civil partner or co-habitee) the intention is that when the trust terminates the property interest passes other than to the survivor. Otherwise, why separate out the property interest?
With that in mind, does the will actually give the property interest to the surviving spouse? If so, does the will correctly reflect the testator’s intention?
I suggest that if the will actually provides for the remainder interest in the property also to pass to the widow, the will instructions file be obtained and the testator’s intentions checked against what the will says. It may be a case for rectification. To proceed without making such enquiry may result in those who should be entitled to the interest in remainder initiating a claim themselves.
Turning to the question asked – about whether probate should be obtained - then I say “Yes”, and doubly so if the property interest should not pass to the widow. As background to this see: Probate, or any other grant – Why Bother? - Lawskills.
As the surviving co-owner/trustee of land, the widow has power to appoint an additional trustee to act with her. If the trust exists (and is not immediately negated by the interest in remainder passing to the widow along with residue), the trust is registrable under TRS, although may be de-registered is the additional trustees of land appointed to act with her are those entitled to the remainder upon the death of the widow.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
I think your initial assumption sounds the most convincing.