Grant of Probate required?

Would be grateful for the input of those with more experience than me of HMLR requirements. This is just a question re: Probate not IHT reporting as I am clear on what needs to be done there.

I am advising a prospective client as to what is required to administer their late father’s estate and whether a Grant needs to be obtained, which ultimately comes down to HMLR requirements.

Briefly, H and W made a gift of part of their home to their son via a Declaration of Trust (which a colleague prepared whilst at her previous firm and is all in order). H & W hold the legal title of the property as TiCs and the DoT is registered on the title. H has now died and we are establishing whether, to remove H and allow his share to pass to W via his Will, we need to get a Grant or because of the existence of the DoT, we can appoint the son as second trustee and overreach H’s interest?

All other assets were held jointly so have passed by survivorship. I am aware of the relevant IHT points re: the transfer of part to the son and this was handled properly via the DoT and will be reported in the IHT return as a failed PET.

Thanks in advance for any input!

Natasha Southam

I am puzzled.

You say “H & W hold the legal title of the property as TiCs and the DoT is registered on the title.” but neither of these is possible. By section 1(6) of the LPA 1925 legal tenancies in common were abolished : all estates in land have to be held as legal joint tenancies. And by section 33(1) of the Land Registration Act 2002 entry of notice of a declaration of trust is prohibited. The only correct entry is a Form A restriction.

Consequently for land registration purposes the declaration of trust is irrelevant. W may, by taking the proper steps, appoint anyone as a second legal proprietor and joint trustee; they may then (if they so desire) jointly convey the land to whomsoever they wish and that purchaser will obtain a good legal and beneficial title, without regard to the declaration of trust.

Sorting out the destination of the beneficial interest is no concern of the Land Registry; nor of any subsequent purchaser so long as the purchase money is paid to to trustees (or a trust corporation).

Clifford Payton
Alpha Court Chambers

Clifford has summed up the legal position admirably, but I suspect [although stand to be corrected] that you are more concerned with practical matters.
I assume that the land registry title is in the names of H and W - perhaps with a restriction entered to prevent a sole proprietor selling? If so, producing the death certificate of H should remove him from the title. If no restriction W can then deal at will; with a restriction W must appoint a co-trustee [which used to be incorporated in the transfer document].
Good luck with the current bureaucracy

To deal with the transfer of beneficial interest to W you need an assent of that beneficial interest to her. If you wanted to dot every I and cross every T you would get a grant to prove title for future dealings with the beneficial interest. From similar discussions as to the need for a grant in such iter family circumstances clearly many felt this is OTT

Simon Northcott