Grant of Probate query

I was dealing with a grant of probate application for husband who died first, owning property as tenants-in-common with his wife. His half of the house passed into a life interest trust. Wife was an executor but already lacked capacity and was in care and so the son and grandson were applying for the grant.

The grant of probate application hadn’t been submitted before wife died. My question is, will a grant of probate still be needed for husband’s estate now, to transfer the legal interest, as well as a grant of probate for the wife’s estate? The executors for the wife’s estate will be the same as for the husband’s estate.

Whilst I know that others take the opposite view, mine is that a grant should be obtained to both estates.

Although the legal title will vest in the survivor, so that her executors are required to convey the legal title on sale, the beneficial interests remain 50/50 between the husband’s estate and her estate. The conveyancers acting in the sale will need to account to both the husband’s and wife’s estate for their individual shares of the proceeds.

Unless a grant has been obtained in the husband’s estate, no one has legal title to receive those monies due to his estate. Should they release the proceeds without seeing a grant to the husband’s estate, this will leave them in a vulnerable position should any claims against the husband’s estate arise, whether merely for payment of a debt, or of a more substantial nature.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals